Have you been cohabiting with your man or woman for a considerable period with no desire, wish or intention to be within the confines of matrimony? The Supreme Court has bad news for you.
In a precedent-setting decision that may have far-reaching consequences for couples who had pegged their hope on long cohabitation as proof of marriage, the apex court has ruled that this may end in premium tears if no evidence is provided to support the presumption of marriage.
Supreme Court judges Philomena Mwilu, Smokin Wanjala, Njoki Ndungu, Isaac Lenaola and William Ouko have warned that the doctrine of presumption of marriage is on its deathbed following changes to the matrimonial laws in Kenya.
The court said the presumption of marriage should only be used sparingly where there is cogent evidence to support it.
“It is becoming increasingly common for two consenting adults to live together for long durations where these two adults have neither the desire, wish nor intended to be within the confines of matrimony,” they said.
They went on: “Where such a situation is evident and there is no intention whatsoever of contracting a marriage, the presumption of marriage must never be made where this intention does not exist. It must always be remembered that marriage is a voluntary union. As such, courts should shy away from imposing ‘marriage’ on unwilling persons.”
The judges said they recognise that there exist relationships where couples cohabit with no intention whatsoever of contracting a marriage.
“In such contexts, such couples may choose to have an interdependent relationship outside marriage. While some may find this amoral or incredible, it is a reality of the times we live in today,” they said.
For instance, the court observed that a person may have been in a marriage before and the marriage is no more due to the death of a spouse or divorce and due to their prior experiences, such persons may choose to have an interdependent relationship outside of marriage.
For others, the judges said, it may just be their desire never to marry but have a partner without the confines of marriage.
“The pervasiveness of having interdependent relationships outside marriage over the past few decades means that no inferences about marital status can be drawn from living under the same roof,” they added.
The judges urged the National Assembly, the Senate and the Attorney-General to formulate and enact Statute law that deals with cohabitees in long-term relationships, their rights, and obligations. This ruling stems from a dispute between two long cohabitees who were fighting for an equal share of a property that they jointly acquired.
His arguments were that they began cohabiting as husband and wife sometime in 1986 and that from joint savings, they purchased a property that later became the bone of contention after he was evicted from it.
The man explained that the property was registered in the woman’s name because its owner was not comfortable selling the property to him because he was not from the seller’s tribe.
“The property was registered in the woman’s name although we had both contributed to its acquisition,” he said, adding that they took possession of the property between 1992 and 1993.
They, thereafter, developed and constructed rooms thereon, one of which they used as their matrimonial home, and rented out the others.
“I did the legwork relating to the connection of electricity, sewerage, and water to the premises. I also operated a bar from the premises,” he said.
The man claimed despite his contribution towards the acquisition and development of the property, the woman evicted him from their matrimonial home in 2011.
At the time, he said, the rentals fetched Sh258,100 per month.
In response, the woman rejected all the man’s claims and denied his involvement in the purchase of the suit property.
“I allowed him to manage the suit property because we were friends,” she said.
According to her, she was already married under customary law to one KM, now deceased, and although they were separated, she never divorced him.
“Therefore, I did not have the capacity to contract another marriage while my first marriage was still subsisting,” she said.
She also claimed that after KM died in 2011, the man intensified harassment to coerce her into marriage, prompting her to file a civil suit to restrain the man from trespassing on her properties.
After listening to the parties, the High Court dismissed the man’s case after finding that although there was long cohabitation between the parties, the principle of presumption of marriage was inapplicable since the woman was already married to KM.
The High Court held that the woman did not have the capacity to marry the man, noting that the relationship between the parties was adulterous and the resulting cohabitation could not be deemed a marriage.
Dissatisfied with the judgment of the High Court, the man moved to the Court of Appeal (CoA) to challenge it.
The CoA presumed the existence of a marriage allowed the appeal and ordered the suit property to be divided into two halves, a share for each party.
Dissatisfied with the finding of the CoA, the woman moved to the Supreme Court, where she sought a number of prayers, including a declaration that the common law doctrine of presumption of marriage has no application in Kenya.
She also sought a declaration that the presumption of marriage is no longer a concept which is beneficial to the institution of marriage, to the status of the parties and to the issue of their union, calling for the setting aside of CoA’s ruling.
She reiterated her earlier arguments that the man was a friend and that she was not capable of contracting another marriage.
“Mere cohabitation without any evidence on capacity, consent, and intention to marry is not enough to establish a marriage by presumption, especially in a situation where one party is denying consent, capacity, and intention to marry,” she said.
The man also stood his ground, submitting that the appellate judges appreciated the existence of a presumption of marriage and urged the apex court to uphold the CoA findings.
In its judgment, the Supreme Court agreed with the woman that she was not capable of entering into another marriage with the man, thus the presumption of marriage could not be made in that circumstance.
“The respondent, having claimed that he was married to the appellant, ought to have adduced cogent evidence to prove the marriage. On analysis and guided by the record, we are unconvinced that the appellant (woman) had the capacity to contract a marriage with the respondent (man),” they said.
In his own testimony, the man admitted he had a first wife and the appellant was allegedly his second wife but had not paid dowry for her.
“We are, therefore, not convinced that his cohabitation with the appellant was sufficient to prove his marriage to the appellant,” the court concluded.
Despite finding that their relationship could not be presumed as a marriage, the court ordered that the two share the contentious property on a 70:30 basis.
“Both parties having a beneficial interest in the property, the share is 70 per cent for the appellant and 30 per cent for the respondent,” said the judges.
