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By Joan Ogeto

It Represents a Quasi-Marital State; a Legal Classification Distinct from Marriage but Often Yielding Comparable or Similar Consequences

In the ever-evolving landscape of matrimonial unions, the traditional pathways to marriage have undergone transformation, giving rise to pragmatic alternatives such as cohabitation, colloquially known as ‘come we stay’ in Kenya. This unconventional arrangement sees couples opting to live together, often without the formalities or blessings of their families or communities. 

Typically, the genesis of such unions stems from a variety of circumstances, where the woman is invited by the man to share a dwelling, hence the evocative term ‘come we stay’. Observation illuminates that these decisions are often spurred by reactive rather than deliberate choices. In many instances, the trajectory towards ‘come we stay’ is catalyzed by the unexpected arrival of a premarital pregnancy. Frequently, the women involved are young, still navigating through their educational pursuits, and some reliant on parental support. Conversely, the men, albeit young themselves, tend to be slightly older, having completed secondary education and boasting a more stable financial footing.

Within African cultures, the distinction between marriage and cohabitation can often become hazy, where societal norms and practices blur the lines between these two forms of union. This ambiguity reflects a complex interplay of tradition, societal expectations, and individual choices, underscoring the multifaceted nature of relationships in contemporary society. This ambiguity has triggered extensive deliberations both in courtrooms and scholarly circles regarding the appropriate treatment of cohabitation. Courts have grappled with the challenge of acknowledging cohabiting relationships and extending commensurate rights, often resorting to the common law principle of presumption of marriage. 

This principle operates under the assumption that individuals in a cohabiting relationship should be entitled to certain rights and protections akin to those enjoyed by legally married couples. In the context of the Kenyan legal framework, the application of the presumption of marriage principle serves to deepen the comprehension of cohabitation dynamics.

Black’s Law Dictionary defines it as “The fact or state of living together, especially as partners in life, with the suggestion of sexual relations.” It constitutes a form of common law arrangement where a man and a woman live in a manner resembling that of a married couple, yet without formalizing their union. It’s essential to distinguish that mere cohabitation does not extend to situations where friends share a living space or where family members reside together. To be categorized as cohabitants, a couple must dwell together in a manner reflective of spousal or civil partner relationships.

Before Kenya gained independence, the concept of cohabitation drew from British legal precedent, where it was construed as a presumption of marriage. This understanding became ingrained in Kenya’s legal fabric through Section 3 of the Judicature Act, which recognizes common law as a source of law. Consequently, the Kenyan legal system embraced this presumption, reflecting the enduring influence of British jurisprudence.

In tracing the evolution of legal thought in Kenya, the recognition of cohabitation as a significant aspect of societal relationships can be traced back to pivotal documents such as The 1968 Report of the Commission on the Law of Marriage and Divorce. This landmark report, commissioned to evaluate existing laws concerning marriage and divorce, not only scrutinized the legal frameworks of its time but also proposed a blueprint for a new, comprehensive law applicable to all Kenyan citizens. It is noteworthy that during an era when such matters were under intense scrutiny, the acknowledgment of cohabitation within the legal realm marked a significant milestone in Kenyan jurisprudence. 

The report delved into the intricacies of cohabitation, addressing fundamental questions such as its definition and the legal implications thereof. One of its key recommendations was the establishment of a general presumption of marriage when individuals cohabit in a manner akin to that of spouses. Moreover, the report provided guidance on determining the duration of cohabitation necessary to qualify as a cohabitation union. Specifically, it suggested a benchmark of at least one year of cohabitation, under circumstances where the couple has acquired the reputation of being husband and wife. This nuanced approach aimed to bridge the gap between traditional legal frameworks and the evolving dynamics of relationships within society.

The embodiment of this presumption was exemplified in the landmark case of Hortensiah Wanjiku Yawe v Public Trustee (Civil Appeal 13 of 1976), where the courts endeavored to elucidate the concept of cohabitation. This case delineated the factors now pivotal in determining the existence of a presumption of marriage between two parties. The Court of Appeal for East Africa asserted that an extended period of cohabitation, conducted in a manner akin to that of spouses, may engender a presumption of marriage in favor of the party asserting it. The court held, “The presumption does not hinge on legal formalities or a particular marital system. Rather, it is a presumption grounded in the extensive cohabitation and societal acknowledgment of the parties as husband and wife.”

Similarly, the UK case of Kimber v Kimber [2000] 1 FLR serves as a notable illustration where the presiding judge demonstrated factors requisite for establishing cohabitation. Central to this criterion was the notion that a reasonable observer would perceive the individuals involved as residing together in a manner akin to a married couple. This entails sharing the same residence, engaging in daily life together, and fostering a sense of stability and permanence in the relationship, transcending fleeting connections such as holiday romances. Furthermore, the court emphasized the significance of financial interdependence, a sexual relationship, and at times, the presence of children as additional indicators of cohabitation.

With the enactment of the Marriage Act in 2014, cohabitation was notably absent among the recognized legal forms of marriage. The Act explicitly acknowledges Customary, Hindu, Islamic, Christian, and Civil marriages, omitting cohabitation from its provisions. However, Section 2 of the Act offers a definition of cohabitation as “living in an arrangement where an unmarried couple resides together in a long-term relationship resembling marriage.”

Subsequently, the case of Joseph Gitau Githongo v Victoria Mwihaki [2014] eKLR shed light on the legal implications of cohabitation. The court expounded on the concept of the presumption of marriage, arising from the extended cohabitation of a man and a woman without formalizing their union through a recognized form of marriage. In such instances, if the woman finds herself abandoned or widowed by her partner, the law, contingent upon sufficient evidence, accords her the status of “wife.” This recognition enables her to seek maintenance or a portion of her deceased partner’s estate. Numerous cases tackle the same issue. The underlying principle that unites them all is that establishing a presumption of marriage typically hinges on factual evidence, requiring individuals to substantiate their claims.

Unlike marriage, which is governed by specific laws aimed at safeguarding the individuals involved, cohabitation does not provide such assurances. It represents a quasi-marital state, a legal classification distinct from marriage but often yielding comparable or similar consequences.

In legal contexts, a “presumption” signifies the court’s inclination or treatment toward a particular matter in the absence of contrary evidence, aiding in the determination of relevant questions. For instance, the presumption of innocence in a trial denotes the court’s stance that the accused is considered innocent until proven guilty. However, this presumption doesn’t inherently confirm innocence. Similarly, the presumption of marriage doesn’t automatically imply a marital status. According to Section 119 of the Evidence Act, courts are empowered to infer the likelihood of certain facts based on the common course of natural events, human behavior, and public and private affairs pertinent to the specific case. The presumption of marriage doesn’t establish a marital union; rather, it allows the individual invoking it to assert certain claims, particularly in matters concerning the inheritance of a deceased individual’s estate.

The initial attempt to address this issue was made in 2007 through the introduction of the 2007 Marriage Bill, which included a provision which proposed that if a man and woman, both capable of marrying, openly lived together for a minimum of two years in circumstances where they were perceived as husband and wife, there would be a rebuttable presumption of marriage.

In 2012, a second proposal emerged under the initiative titled ‘A change to marriage laws.’ This proposal, approved by the Cabinet at the time, aimed to recognize ‘come-we-stay’ arrangements lasting over six months as legal marriages. The proposed legislation would have empowered chiefs to formalize such unions, registering them as marriages. Proponents argued that this approach would provide legal recognition to couples who may lack the means to undergo traditional or civil marriages. Additionally, the Marriage Bill outlined provisions for the maintenance of spouses and children in cases of marital breakdown or divorce following cohabitation. Despite these efforts, both proposals were ultimately abandoned.

In 2015, Justice Alfred Mabeya provided clarification on the legal status of couples claiming marriage through long-term cohabitation under the 2014 law. He noted that the law did not recognize marriage by long cohabitation. However, he highlighted that this omission did not invalidate relationships where couples had lived together as spouses for extended periods, often resulting in children. Mabeya emphasized that despite the absence of legal recognition, such relationships still held significance and warranted consideration under the law. Similarly, Justice William Musyoka articulated this principle in a 2015 ruling, stating that when a marriage fails to adhere to the formalities outlined in the Marriage Act or customary law, it may still be validated through the presumption of marriage by cohabitation. The court emphasized that for this presumption to apply, the couple must have resided together for a significant duration and presented themselves as husband and wife to their close circle of friends, relatives, and acquaintances.

The presumption of marriage hinges on specific criteria: the parties must have cohabited for a considerable duration and conducted themselves in a manner suggestive of a marital bond. This fundamental principle has consistently guided judgments across various cases heard in our courts. Determining the existence of a marriage, as well as the possibility of presumption, is a matter of fact. It is independent of any legal system, except where expressly excluded by written law. For example, a marriage cannot be presumed if one party is already married under statute. However, if both parties possess the capacity to marry, a presumption of marriage may arise from prolonged cohabitation or other circumstances indicating an intention to live together as spouses. 

Much like in murder cases where intent is pivotal, the crux lies in the intention of the individuals to live as a married couple.

The writer is a lawyer

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