NAKURU, Kenya – Living together for four years does not automatically establish a legally recognised marriage in Kenya, a Nakuru court has ruled while dismissing a divorce petition filed by a Kenyan citizen based in the United States.
The petitioner had sought to dissolve a four-year come-we-stay relationship, but the magistrate found that the evidence presented did not establish a marriage that could legally be dissolved.
The court noted that the petitioner had not produced a valid marriage certificate and ruled that the parties remained unmarried because their period of cohabitation was insufficient to justify a presumption of marriage.
“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.
The decision highlights the legal distinction between living together as a couple and establishing a marriage recognised under Kenyan law.
What Kenyan Law Says About Cohabitation
The Marriage Act, 2014, does not automatically recognise every cohabiting relationship as a marriage. Section 2 defines cohabitation as a situation in which an unmarried couple lives together in a long-term relationship resembling marriage.
Section 6 of the Act recognises five forms of marriage in Kenya: Christian, civil, customary, Hindu and Islamic marriages.
However, the absence of a marriage certificate does not necessarily end every legal dispute involving a long-term relationship. Courts may, in appropriate circumstances, consider whether a marriage can be presumed from the parties’ conduct and the evidence presented.
Supreme Court Set Conditions For Presuming Marriage
In a 2023 decision, the Supreme Court set out strict conditions for establishing a presumed marriage where no formal marriage certificate exists.
The court considered factors including whether the parties had lived together for a long period, had the capacity to marry, intended to marry and consented to the union.
It also held that evidence rebutting a presumption of marriage must be strong, distinct, satisfactory and conclusive, with the applicable standard of proof being a balance of probabilities.
In that case, the court addressed a relationship spanning 25 years and a 70-30 per cent property-sharing arrangement, illustrating how the evidence and circumstances of an individual relationship can affect the outcome.
The contrast with the Nakuru decision underscores that cohabitation alone does not guarantee recognition as a marriage.
Cohabiting Couples May Still Have Property Rights
Even where a marriage certificate is absent, couples who have lived together for years may still seek legal remedies in disputes involving property ownership, succession and contributions made during the relationship.
Courts have previously considered evidence such as the duration of cohabitation, children born within the relationship, contributions to family life and the circumstances under which property was acquired.
A High Court ruling has also emphasised that a marriage certificate is not the only factor courts may consider when determining claims to matrimonial property.
Years spent raising children, maintaining a household and contributing to family life may be relevant evidence in a property dispute, depending on the applicable law and the facts of the case.
