Cohabitation in Kenya – Does Living Together Mean You’re Married in Kenya?

Marriage is a significant commitment, and Kenyan law offers various avenues for couples to formalize their union. This article explores cohabitation in Kenya and its implications for marriage. We’ll also delve into the concept of a resultant trust, which can be crucial in dividing property acquired during cohabitation.

Types of Marriages in Kenya (Post-2014)

The Marriage Act of 2014 recognizes five types of marriages in Kenya:

1. Monogamous marriages: Christian, civil, and Hindu marriages fall under this category.
2. Polygamous marriages: Customary and Islamic marriages can be polygamous, meaning a man can have multiple wives. However, a customary marriage can be converted to a monogamous civil marriage, but only if the man has just one wife.

Is Cohabitation Allowed? Can it Lead to Marriage?

Cohabitation, where a couple lives together in a long-term relationship without being married, is legal in Kenya. However, simply living together doesn’t automatically translate to marriage.

A 2021 Supreme Court case (MNK v POM Petition No. 9 of 2021) sheds light on this. The couple cohabited for 25 years, but the woman denied marriage, claiming they were just friends. The court pointed out that cohabitation, along with certain actions, can be used to presume a marriage. However, the presumption can be rebutted with strong evidence, as in this case.

Presumption of Marriage: 8 Guidelines from the Supreme Court

The Supreme Court established eight guidelines to determine if a presumption of marriage can arise from cohabitation:

1. Long cohabitation: The couple must have lived together for a significant period.
2. Legal capacity to marry: Both partners must be legally able to marry (not already married to someone else).
3. Intention to marry: Evidence suggesting the couple intended to be married.
4. Consent: Mutual agreement to be married.
5. Public reputation: Presenting themselves as a married couple to the community.
6. Burden of proof: The party claiming marriage has the burden to prove it.
7. Rebutting the presumption: Strong evidence can disprove the presumption.
8. Standard of proof: “Balance of probabilities” – the court must be more likely than not to believe the marriage existed.

Lessons Learned

1. Formalize your marriage:  Registering your marriage provides clarity and avoids future complications.
2. Monogamy is the norm: Christian, civil, and Hindu marriages are monogamous. If already married under a customary or Islamic system, you can’t enter a monogamous marriage unless you convert the existing marriage to a monogamous form (and only if there’s one wife).
3. Cohabitation with actions can establish marriage:  Living together with actions demonstrating a marital relationship might be considered a marriage.
4. ID name can be a clue:  A woman’s ID reflecting her husband’s name can be one of the contributing factors indicative of marriage.
5. Constructive trust for property division:  If not married officially, but cohabiting and contributing to property acquisition, a constructive trust might be established to ensure fair division upon separation.

Remember: This article provides a general overview. Legal advice from a qualified advocate is always recommended for specific situations.

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