The Supreme Court of Kenya has noted the increasing common trend of adults living together for years with no intention and desire to get married. According to the apex judges, marriage is voluntary and no one should impose marriage to any individual. Although marriage is voluntary, the Court will no longer consider the cohabitation of two consenting adults without the intention of getting married as a presumption to marriage.
The apex judges said that over the past few decades, people have been having interdependent relationships outside marriage and that’s the current reality of the modern times we live in. Others engage in such kind of relationships because they have no desire to ever get married. Though this is the case, there are no inferences of marital status from such kinds of relationships.
Therefore, mere cohabitation without any evidence of marriage or the intention to get married is not enough to establish a marriage by presumption, especially in a situation where one party is denying consent, capacity, and intention to marry.
This ruling stemmed from a dispute between a couple that used to cohabit in the year 1986. They had bought properties together and even had a savings account together. But when they fell out, both of them wanted equal distribution of the properties, but the woman claimed that she owned all the properties that the man was just his lover, and that he had contributed nothing to their relationship.
She denied the man and claimed she had no capacity to be in a marital relationship with the said man because she was married to a different who was deceased. In such a case, it was had to prove evidence of marriage and the Supreme Court ordered that the woman should take 70% of the property while the man should receive 30%.
The Supreme Court judges led by Justices Philomena Mwilu, Smokin Wanjala, Njoki Ndungu, Isaac Lenaola, and William Ouko; urged the National assembly, the senate, and the Attorney-General to formulate and enact laws that deal with the rights and obligations of adults cohabiting for a long period of time.