My husband kicked me out of a house I helped build...

Hi Vivian,
I began staying with my husband in 2010. At the time, we did not have sufficient financial capabilities to enable us to conduct an official marriage ceremony, including bride price payment. Two years later, we proceeded to purchase a property in Nyeri town which was registered in his name. We built a matrimonial home, where we have lived together with our three children. In 2022, my husband and I separated, and he immediately brought in another woman with whom he has continued to stay in our home. I was kicked out and forced to rent a house in Nyeri town. I am unable to access the house, yet we bought it during our marriage. I believe I should have access and a share in it. What should I do?
Phylis Njoki,
Nyeri

Dear Phylis,
The rise in cohabitation represents one of the most significant changes in union formation patterns in many developed economies. Over time, people hold the belief that once a couple has lived together for an extended period of time, there is an automatic marriage.

To this end, there is an erroneous belief that a couple does not need to get into formalities of marriage, when they can simply stay together for a long period of time and be ‘deemed’ to be married under the law.

While this assumption has been found to be the case in several cases before the courts in Kenya, the Marriage Act of 2014 strictly recognises only four types of marriages. That is; civil, Christian, customary, Islamic and Hindu marriages. Unfortunately, your union is not clustered in any of the four recognised marriages in Kenya.

However, the Supreme Court of Kenya on January 27, 2023, found itself with the burden to unpack presumption of marriage. They laid strict parameters within which presumption of marriage can be made.

The parameters are:
 i. The parties must have lived together for a long period of time;
 ii. They must have the capacity to marry. That is, they must be 18 years and above at the time of the union;
 iii. They had an intention to marry—it must always be remembered that marriage is a voluntary union;
 iv. There was consent between the parties; and
 v. They held themselves in the world as married couples.

Therefore, should you approach the courts to make this presumption, you shall have the burden to prove the above elements.

The importance of this recognition of marriage is to have the property acquired during the union, be recognised as matrimonial property.

The distribution of this property shall then be made on the basis of monetary or non- monetary contribution of each party.

Even though the narrative of presumption of marriage has now received a clear legal pathway, the Supreme Court has cautioned that the doctrine of presumption of marriage is on its deathbed.
Vivian

The writer is an advocate of the High Court of Kenya and award-winning civil society lawyer. [email protected]