Have you been cohabiting with your partner for over a decade without formalising the union, only for them to later dismiss your relationship as casual?
The court may have your back.
According to the High Court, cohabitation over such a prolonged period is sufficient to raise a presumption of marriage.
With these findings, the High Court in Voi has come to the aid of a woman whose partner not only tried to walk out on their long-standing relationship but also attempted to deny her any rights to property acquired during their cohabitation, which began in 2003.
“I find that the respondent sufficiently proved, on a balance of probabilities, that a presumption of marriage existed between herself and the appellant based on their prolonged cohabitation, mutual intention to marry, and public acknowledgment as husband and wife,” said Justice Asenath Ongeri in a judgment dated May 30.
The court affirmed that several properties, including land, a motor vehicle and household items, constituted matrimonial property under the Matrimonial Property Act, 2013.
According to the judge, evidence presented demonstrated that the assets were acquired and developed during the subsistence of the relationship, with contributions from both parties.
The case was first filed at the Taveta Magistrate’s Court in 2020, when a woman identified as JLM (respondent) sought several declarations including a presumption of marriage between her and the man, identified as WMG (appellant) and that they were husband and wife under the law.
JLM also asked the court to declare the properties in question including land in Taveta as their matrimonial home.
“I pray for a permanent injunction restraining WMG, whether by himself, his agents, or servants, from intimidating, threatening, or harassing me in any manner whatsoever,” she stated.
She further sought a declaration that she was legally entitled to reside in the matrimonial home peacefully and without interference.
JLM testified that she met WMG in 2003 and they began cohabiting in 2005, living together in various towns including Mombasa, Nairobi and Taveta. She claimed that all listed properties were acquired during their union.
She argued that the duration of their cohabitation and their conduct as husband and wife warranted the court to recognise a presumption of marriage.
In his defense, WMG claimed they began cohabiting in 2010, not 2003 as alleged, and denied any marital relationship, describing it as a “simple relationship” that could not be considered a marriage.
He said they cohabited from 2010 until 2021, when JLM discovered he was in a romantic relationship with another woman, whom he referred to as his second wife.
Upon analysing the evidence, Magistrate DM Ndungi found that the man regarded JLM as his first wife and the other woman as his second.
The magistrate further found that the property and vehicle in dispute were acquired while the couple lived together, qualifying them as matrimonial property.
Mr Ndungi ruled in favour of JLM granting all her prayers, including the right to reside in the matrimonial home.
Although WMG claimed cohabitation began in 2010, the court held that the admitted duration was still long enough to raise a presumption of marriage.
The magistrate also found both parties had the legal capacity and mutual intention to marry and had publicly held themselves out as husband and wife until JLM discovered the second relationship.
Unhappy with the decision, WMG appealed to the High Court in Voi, arguing that the magistrate erred in finding a presumption of marriage despite his evidence to the contrary.
He also faulted the court for classifying the properties as matrimonial without definitive proof, claiming his evidence was disregarded.
“The magistrate erred in law and fact by failing to appreciate that the presumption of marriage should be applied sparingly and only where cogent evidence exists,” he submitted.
WMG argued that some relationships involve cohabitation without any intent to marry and that the presumption of marriage no longer applies under the current Marriage Act.
He added that JLM failed to provide proof of a customary marriage or evidence of having met formal requirements, maintaining that they had separated and were no longer living together.
He also claimed he had built the house in question before meeting JLM and denied her financial contribution.
“There is no proof that the respondent made any financial contributions towards the purchase or development of the property,” he stated.
JLM, however, outlined the criteria for establishing a presumption of marriage: prolonged cohabitation, legal capacity, mutual consent, and intention to marry.
She argued that they lived openly as husband and wife, which justified the magistrate’s ruling.
She also testified that she constructed a two-bedroom house on the disputed land and submitted photographs.
During the trial, WMG admitted the house was built jointly. He also confirmed that they constructed a borehole and washroom, repainted the house, and that she lived there in his absence.
“He confirmed that neighbours recognised me as his lover and fiancée and I lived in the house in that capacity,” JLM said.
After re-evaluating the evidence, Justice Ongeri upheld the lower court’s findings, ruling that JLM had proved her case to the required civil standard.
“Consequently, this appeal is hereby dismissed in its entirety. The judgment of the trial court is upheld. The respondent (JLM) shall have the costs of this appeal,” the judge ruled.
Justice Ongeri found that both parties had the capacity and intention to marry and publicly presented themselves as husband and wife.
