PRESUMPTION OF MARRIAGE UNDER KENYAN LAW
INTRODUCTION
Over time, some people do hold the belief that once a couple has lived together for an extended period of time, there is an automatic marriage under common law. To this end, there is an erroneous belief that a couple does not need to get into the rigours and formalities of marriage, when they can simply stay together for a long period of time and they will be ‘deemed’ to be married under the law.
The purpose of this short article is to set out the legal position in Kenya with regard to the long established doctrine of ‘presumption of marriage’, in light of the Marriage Act 2014.
Presumption of Marriage under Common Law
Common law is law that is developed through judicial decisions, and interpretation of statutes, especially as was passed down to Kenya from English courts.
One of the earliest decisions on the presumption of marriage in the case of Hortensiah Wanjiku Yaweh versus Public Trustee (Civil Appeal 13 of 1976) where the court established the need for long cohabitation before anybody moving the court, can establish a presumption of marriage. The court stated as follows
“The presumption does not depend on the law or a system of marriage. The presumption is just an assumption based on a very long cohabitation and repute that the parties are husband and wife.”
Later on in 2014, in the case of Joseph Gitau Githongo versus Victoria Mwihaki (2014) eKLR, the court stated as follows:
“It (presumption of marriage) is a concept born from an appreciation of the needs of the realities of life when a man and woman cohabit for a long period without solemnizing that union by going through a recognized form of marriage, then a presumption of marriage arises. If the woman is left stranded either by cast away by the “husband”, or otherwise he dies, occurrence which do happen, the law subject to the requisite proof, bestows the status of “wife” upon the woman to enable her to qualify for maintenance or a share in the estate of her deceased “husband”
There are several other decided cases that speak on the same issue. The principle that ties them all is that a presumption of marriage is often a question of fact and evidence which a person needs to establish. I will explain this a little more in the next section.
Does a Presumption of Marriage create a Marriage?
A short answer to this question is that it doesn’t. The Marriage Act Number 4 of 2014 recognizes only 4 types of marriages as follows:
- Civil Marriages
- Christian Marriages
- Customary Marriages
- Islamic Marriages
- Hindu marriages
Section 3 of the Marriage Act states that “Marriage is the voluntary union of a man and a woman whether in a monogamous or polygamous union and registered in accordance with this Act.”
Thus, any other kind of relationship that is not registered as a marriage under the Act, does not become a marriage.
To buttress this, Section 2 of the Act defines “cohabitation” as “…to live in an arrangement in which an unmarried couple lives together in a long term relationship that resembles a marriage.”
On the basis of statute, it is thus clear that a presumption of marriage, does not create a marriage. It only presumes it. I will clarify this in the next section.
What then is the purpose of a presumption of marriage?
In general, a “presumption” usually occurs when a court adopts a particular attitude and treatment, without evidence to the contrary, for purposes of determining a particular question connected to the presumption.
For example, one is only “presumed innocent” in the context of a trial to determine whether or not one is actually innocent or not. The fact that a person enjoys the presumption of innocence does not mean that they are innocent. Just as when someone enjoys the presumption of marriage, it does not mean they are married.
A presumption of marriage is used by the court to answer a different kind of question presented to it. I will give an example. When a woman is disinherited by her in-laws, she will move to court to determine whether or not she is entitled to inheritance. In making that determination, the court may use the presumption of marriage (if she qualifies), not to declare that she was married to her late husband, but to determine the question of inheritance. In that case, the presumption will be specifically limited to the question of inheritance.
Section 119 of the Evidence Act states as follows:
“The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case”
Thus, from this provision of the law, we have 2 facts:
- The presumed fact (such as the presumption of marriage/innocence etc)
- The actual facts in issue in a case ( such as the question of inheritance)
That was also the position the court stated in Joseph Gitau Githongo versus Victoria Mwihaki which I outlined above.
CONCLUSION
A presumption of marriage does not create a marriage. It only enables the person who relies on it to make a claim such as on matters to do with the inheritance of the estate of a deceased person. A presumption of marriage does not exist on its own. It only exists in the context of a bigger dispute which the court will be called to adjudicate and determine.
This is a great article, it’s precise yet comprehensive. However, I think marriages can no longer be presumed(as a matter of law) post-August 2017- which was the deadline for the registration of all marriages(S 96 Marriage Act)
Simple and clear I love this article
Thanks so much.
BCC v JMG is a 2018 case in which the High Court upheld the trial court’s finding of a presumption of marriage for the purposes of succession.
I think S96 applies to marriages before the Act commenced. Future marriages can still be presumed.
The regime of presumption of marriages still exists.
This piece is well written and researched on. Simple and clear to comprehend.
Thanks Mr. Abenga. This article has made me understand this matter very clearly.
Hello Peter,
I am glad to know you have found some value in the article.
Great. You bring life to law with your approach to these things.
Can a man who has cohabitated with a woman for 13 years and sired 2 children claim to be her husband and therefore oppose her marriage to a different man
Good morning Lilly,
Thank you for reaching out to us to assist on your matter.
Yes, a man can oppose your marriage to a different man since there was presumption of marriage.
In a single research as per this synoptic article, I’ve already understood the bigger side of the question in the presumption of marriage.
I love this article. It’s an eye opener for me; I’ll use some of the points learnt to educate/ sensitize youth in my church
Nice article. I have learnt a lot.
Hello there Levin
Thank you for the kind remarks.
We are glad you were able to learn.
Does “come we stay” without involving a pastor/ parents/dowry make a union a marriage? Please help. I once had a female move in with me. No one was involved. No parents. No dowry. No pastor. No chief or anything. We later separated after 8 months. Was that a marriage? Are we in the divorce category? Am asking this for religious purposes.
Please help
Good afternoon Caleb,
Thank you for your question on the ‘Presumption of Marriage Under Kenyan Law’ article.
To respond to your question come we stay arrangements do not create a marriage.
Have a great day ahead!
What happens when one ends a cohabitation arrangement, and would like to legally marry someone else? Can the former cohabitee make any claim? Like oppose the wedding?
Hello Washington, thank you for taking your time to read our article, According to the Marriage Law of Kenya, Cohabitation is considered Null and Void, e but the cohabitee opposing or not opposing the wedding will be determined by a lot of things, Like one:
1: How long have you been together?
2: Was there any traditional customs done?
3: Are there Kids involved?
kindly reach us out on 07 43 235 923 or info@begislaw.com for more information and guidance.
Looking forward to being of service to you.
Hello, what would “requisite proof” entail. Nice article sir
Hopefully I receive a quick response, am pregnant and it’s been Less than a year, when we realised we’re expectant he sold my shop machines and paid for a house awaiting salary when salary arrived he went to police to say am forcefully staying in house I have supporting evidence of all this, can I be reinstated and leave for good, will I have to co parent with him since adoption is also an option.
Actually am terribly unwell and locked in a house without food just medication and water, I can take the pressure meds without food, no contacts his consficated all my freedom and uses the police to intimidate me, am I valid to bring this to the chief or even the media to maybe get some pro-bono assistance. 0769239892 I need someone before I pass out and die in here I can’t even get up am too weak and dizzy with fever and bad headaches, I did go to hospital and could have been admitted but he called and said let he return I’ll care for her so I was brought back on a stretcher, am actually her buddy typing this,she can talk but very low and weak. I wish to remain anonymous but kindly advice a way forward.
Thanks for your time. The email is not valid,her phone was reset and has been unable to log since one week now so no contacts, only the few who call to find out or make order at her shop.
I hope this reaches you urgently and you can advise or direct her to someone who can help at least reinstate her.
Dear Eva, we are sorry to hear what you are going through. We will call you to discuss how we can link you to the appropriate help.
Kind regards.
Mr Abenga kindly what is your email address? Mine is natashah225@gmail.com…i wish to consult you over a matter. Thanks
Dear Natasha, Thank you for reaching out to us,
My email is elvisabenga@begislaw.com, CC; info@begislaw.com You can also reach our office via our phone number; 07 95 797 897/ 07 43 235 923.
We look forward to being of service to you.
Hello, I lived with my “husband” who recently died for 3 years,we have a son, we have gone to visit our parents.
Are we entitled to inherit anything?
Thankyou
Dear Eunice,
You as a wife would be entitled to inheritance if you contracted a marriage recognized in law, or if you can establish a presumption of marriage. Your son however has an automatic right to inheritance. Please share your contact number so that we can assist.
ln my case I move in with a woman with no introduction to parents and we were blessed with a child, and we had separated did she claim anything from me?
Hello,
In that case, there is no legally recognized marriage. To this end any property acquired cannot be deemed to be matrimonial.
Kind regards.
There is one thing that is unclear to me. If you have an Islamic marriage and you only have the nikkah, but it is not legally registered by the state of Kenya, is that marriage still recognized legally by Kenya if it is not registered?
Dear Dray
Many thanks for your inquiry. For an Islamic marriage to be recognized in Kenya, it needs to be legally registered under the Marriage Act.
It is thus important to go through the marriage registration process.
We lived for 1 year as come we stay and thereafter went to see her parents and we negotiated a marriage. We paid some money according to the customs and we were given the girl. We thereafter stayed together for 4 years before she decided to quit. I hear she is living with someone else. Can the courts presume marriage in that case? and what can the court stop her from getting engaged with someone else given we were married?
Hello Wiye, Thank you for taking your time to read our article and reach out to us, in your situations, it’s clear there was customary marriage involved hence you can consider approaching court too screen your matter for court annexed mediation so that the court can try to resolve the matter amicably.
Please reach us out on; 07 43 235 923 for more advise and directions.
Looking forward to being of service to you.
can someone assist me to identify some of the loopholes that are there in the Marriage Act 2014 please
Hello Beatrice, for advise and more information on marriage act, Kindly book an appointment with our advocate any day of the week from Mon-Fri 8AM-5PM at a fee of 4000Ksh, Kindly note that this meeting can happen virtually or physical. Please reach us on 07 43 235 923 or 07 23 313 833. Looking forward to being of service to you.
We have a marriage affidavity and my man left me to another woman curently they have a son and he might have withdrawn my affidavit from his work place but i reported him to childrens office for maintenance of his kids he seems to neglect the responsibility and am feeling to file this matter to court…can this copy of affidavit be helpful to me according to current filed bill by hon peter kaluma..please help
Hello Ruth, thank you for taking your time to read our article and reach out to us, yes the affidavit will be helpful the moment you decide to file the matter in court, for more information and help, Kindly reach us on 07 43 235 923.
Looking forward to being of service to you.
1. Does partial payment of dowry alone without registration of a customary marriage suffice as proof of the marriage? Does that situation confer legality to the union?
2. If (such a) customary celebration was undertaken in a neighbouring country (without registration there) but one of the parties is Kenyan, can that union be registered here in Kenya? As in is the Marriage Act 2014 of Kenya applicable to customary proceedings that took place in a neighbouring country in 2016?
Hello Nicholas, thank you for taking your time to read our article, in reference to your enquiry,
Yes, the small token is considered as proof of marriage and shows that there were traditional steps taken to officiate the union, also, the act only applies within the jurisdiction and territory of this country, the law that will be applicable for your marriage is the law from where the wedding celebration took place.
Disclaimer: Please note this is not legal advise, for more information, Kindly visit your legal advisor or reach us on 07 43 235 923 for more information and directions.
Looking forward to being of service to you.
Very interesting my lecturer ….. I am now getting interested in matters of family law
Hello Wambua, Thank you for taking your time to read our article and we are glad that you like it, all the best in your endeavours.
I have been in an informal relationship for 3 years. We don’t live together but meet irregularly for overnight stays. I have given her in excess of KS 2 million.
I have ended the relationship but she is insisting on money to help her start a new life. Does she have a valid claim
Dear Graham
From what you have mentioned there is no valid claim.
Hello I had woman in a come we stay with no introduction and dowry and had a child, so we seperate she is claiming he want to do valuation of property that I have, is that acceptable
Hello Samuel, thank you for taking your time to read our article, According to the Marriage Law of Kenya, Cohabitation Marriage (come we stay) is considered null and void hence Matrimonial Properties can not be divided amongst the parties, Nevertheless, the partner has the right to file a case for child maintenance and child support. for more information and directions, Kindly reach us on 07 43 235 923 or info@begislaw.com, to book an appointment with our advocates any day of the week.
Looking Forward to being of service to you.
But doesn’t the new Children Act 2022 give equal responsibility to both parents? Meaning joint custody and unlimited access hence each parent shoulder’s the child’s expenses when they are with the child. Therefore, no parent is obliged to compensate the other for support (food, clothing, shelter), except for Education & Medical which must be equally shared?
I have lived with a man for 12 years now, blessed with 2 daughters. Introductions at my parents’ home by him and his family were done in 2012 with him giving the requirements – kutoa miraa as per meru traditions. We signed an affidavit of marriage in 2014 but he is yet to take the dowry.
However, in recent times been contemplating separation on the following grounds: neglect, denial of conjugal rights, abuse (financial, material, mental and emotional made more worse after my job loss in 2018), and also the outright refusal to fulfill the cultural obligation of paying dowry in addition to legally registering our union.
For my own sanity, I wish to give this union a break and move out with my girls…Is it possible to have him compelled to give child support and maintenance?
I look forward to hearing from your good office.
Thank you.
Good evening
I have lived with a man for 12 years now, blessed with 2 daughters. Introductions at my parents’ home by him and his family were done in 2012 with him giving the requirements – kutoa miraa as per meru traditions. We signed an affidavit of marriage in 2014 but he is yet to take the dowry.
However, in recent times been contemplating separation on the following grounds: neglect, denial of conjugal rights, abuse (financial, material, mental and emotional made more worse after my job loss in 2018), and also the outright refusal to fulfill the cultural obligation of paying dowry in addition to legally registering our union.
For my own sanity, I wish to give this union a break and move out with my girls…Is it possible to have him compelled to give child support and maintenance?
I look forward to hearing from your good office.
Thank you.
Very enlightening article
Hello John,
Thank you for taking your time to read through our article, For assistance, please reach us on 07 95 797 897/ 07 43 235 923.
We look forward to being of service to you.
HI,your articles are very enlighting..my uncle passed on this year and he had been married to his first wife who died in 2015 and they had mature children.He was engaged with another woman who wants to lay claim on properties they had acquired with first wife.Is the second wife entitled to them?
Dear Joash, Thank you for reaching out to us,
Kindly assist us with your phone number for more information on matrimonial property/ inheritance, You can also reach us via our phone number; 07 95 797 897/ 07 43 235 923.
We look forward to being of service to you.
Hello,
In light of the Law of Succession (Amendment) Act No. 11 of 2021 and the recent judgment by Justice John Onyiego, on the position of come-we-stay marriages with regard to succession, does it mean presumption of marriage is allowed in succession proceedings but not in matrimonial division cases? If so, what’s the rationale for such disharmony between the two yet family law and succession are more like twin sisters whose mother is one…..marriage?
I like your articles!
Dear Kambura,
Thank you for taking your time to read through our articles,
Kindly assist us with your phone number for more information and assistance on the presumptions of marriage, You can also reach us on 07 95 797 897/ 07 43 235 923.
We look forward to being of service to you.