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COHABITATION IN KENYA


INTRODUCTION

The Marriage Act 2014 explains the meaning of cohabit as: ‘…an arrangement in which an unmarried couple lives together in a long-term relationship that resembles a marriage’

Various discussions have been made presuming that where this kind of arrangement is made, the State considers the couple married. In light of this presumption, this article aims to bring quietus to the presumption of marriage for cohabitees and correct this error with the following facts as follows:

1. What grounds influence this presumption of marriage for cohabitees?

2. What provisions of the Law?

GROUNDS THAT INFLUENCE THE PRESUMPTION OF MARRIAGE FOR COHABITEES

The Black's Law Dictionary defines 'presumption' as 'a legal inference or assumption that a fact exists based on the known or proven existence of some other fact or group of facts'. As per the Court of Appeal in Joseis Wanjiru v Kabui Ndegwa Kabui & another [2014] eKLR the presumption of marriage is a presumption of fact.

While the previous marriage act left room for cohabitees who lived together for a long period of time to be recognized as married, the new marriage Act No. 4 of 2014 excludes cohabitees from benefits available to spouses hence negating the same.

Consequently, the presumption of marriage for cohabitees was grounded on the marriage and matrimonial property laws before 2014.

However, this presumption created by the now repealed laws seems to continue existing in the minds of Kenyan citizens.

PROVISIONS OF THE LAW

The Marriage Act, No. 4 of 2014, came into force on 20th May, 2014 which provides for registration of all systems of marriage.

The purpose is to give effect on the equality of status between all systems of marriage and provide for a process of registration of marriages through certificates issued by the Registrar of marriages.

The Attorney General issued a Gazette Notice No. 5345 dated 9th June, 2017 requiring the registration of customary marriages in Kenya.

Section 50 (2) (b) states that the Registrar shall register all marriages. This Section is straightforward and further complemented by Sections 53, 54, 55, 56, 57 and 58 which provide for Registration of Christian, Civil, customary, Hindu, Islamic marriages and marriages contracted abroad. Evidence of Registration is a Certificate of Marriage issued by the Registrar. It is thus apparent that the Act requires the registration of all marriages celebrated in Kenya.

The Marriage Act 2014 provides a further procedure for cultural marriages to be registered including the cultural marriages contracted in the repealed marriage and matrimonial property laws according to the already spent transitional provision as follows:

Section 96 (2)

Parties to a marriage contracted under customary law, the Hindu Marriage and Divorce Act (Cap. 157) (now repealed) or the Islamic Marriage and Divorce Registration Act (now repealed) before commencement of this Act, which is not registered shall apply to the Registrar or County Registrar to assistant Registrar for the registration of that marriage under this Act within three years of the coming to force of this Act. (3) The parties to a customary marriage shall register such a marriage within three years of the coming to force of this Act.”

One of the main purposes of the Marriage Act 2014 is to register all systems of marriages in Kenya. This Purpose is concurrent with the 1968 Report of the Commission on the Law of Marriage and Divorce in Kenya. In its report, the Commission noted the difficulty of proving customary marriages, stating that:

“We believe also that the fact that customary marriages are not registered leads to difficulty in proving such marriages, particularly when matrimonial proceedings are taken in an area other than that in which the parties were married”.

Therefore, in accordance with the Marriage Act failure to register a marriage results to a voidable marriage according to Section 12 of the marriage Act as was held in JOK v SAO [2018] eKLR. In this appeal, the parties did not comply with Section 44, 45 and 55 of the Marriage Act 2014, No. 4 of 2014. The failure to notify the Registrar under Section 55 of the Marriage Act to issue them with a certificate of marriage was fatal to the Respondent’s case. It was therefore found and held that due to the failure to produce marriage certificate as provided for under the Marriage Act 2014, the Respondent failed to prove that she was lawfully married to the Appellant under Luo Customary Law.

CONCLUSION

The upshot of this is to demonstrate that it is incumbent for responsible couples to register their marriage through whichever system they prefer in order for them to fully enjoy the protection of the Law and in the unfortunate event of a dispute, a party is able to prove their marriage vide the Certificate of marriage issued by the Registrar of Marriages.

It is therefore apparent that cohabitation is not provided for in the Marriage Act 2014, since it is difficult to prove. Consequently, this is not advised and encouraged.

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