Cohabiting for four years does not constitute a legally recognised marriage, regardless of the nature of the relationship, the court has ruled.
The Nakuru Magistrate Court on Tuesday dismissed a divorce petition filed by a United States-based Kenyan citizen who had stayed in a come-we-stay type of marriage for four years.
According to the magistrate, there was no valid marriage certificate, making the marriage invalid and therefore there was no divorce to petition.
The court further ruled that the parties continue as unmarried since their four-year cohabitation did not constitute a legally recognised union under Kenyan law.
A photo of Milimani Law Courts in Nairobi
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The Judiciary
"I find a period of four years not that long and given the evidence adduced by the petitioner herein, I find no quality in the short period that the parties herein cohabited to make me presume a marriage, even though such a presumption shall still serve no purpose herein," the magistrate ruled.
While Kenyan law under the Marriage Act, 2014 does not recognise cohabitation as marriage, it defines "to cohabit' in Section 2 as a situation where an unmarried couple lives together in a long-term relationship that resembles a marriage.
In a Supreme Court ruling in 2023, the court laid strict rules that must be met by parties who want the court to find that a marriage exists without a marriage certificate.
In the 2023 case, the court awarded a 70-30 per cent property-sharing agreement between parties who had lived together in a come-and-stay type of marriage for 25 years.
The Supreme Court argued that the parties had lived together in long cohabitation, had the capacity to marry and intended to marry.
At the same time, the Supreme Court found that there was consent between the parties. It further held that evidence rebutting the presumption of marriage must be strong, distinct, satisfactory and conclusive, while the standard of proof remains on a balance of probabilities.
Section 6 of the Marriage Act only recognises five types of marriage in Kenya. These include Christian, Civil, Customary, Hindu and Islamic marriages.
Those who have lived together without legal marriage may seek the court's intervention to determine the fate and rights of the parties in case of succession and property ownership disputes in the eventuality of the death of one party or breakdown of the union.
Recently, a High Court ruled that a marriage certificate is not the only thing the court will look at when it comes to the sharing of property after the dissolution of marriage.
According to the court, years of cooking, raising children and holding a family together can earn one a share of property, even without a marriage certificate.
The court ruled that long cohabitation, children born within the union, and the realities of family life could give rise to a presumed marriage capable of grounding a claim under the Matrimonial Property Act.
The newly established VVIP lounge for couples seeking civil marriage services.