Presumption Of Marriage In Kenya: End Of An Era?

 Introduction 

It is a long-settled common law principle that long cohabitation of a man and woman with a general reputation as husband and wife raises a presumption that the parties have contracted a marriage. 

Various nuances affect such presumption from arising, such as one of the parties alleging that it was not their intention to marry the other party, rather the intention was and remains companionship, ease of sharing bills as they take care of children borne out of their relations etc. 

With the fluidity of the nature of why people cohabit, the courts often have to consider evidence placed before it to determine whether such presumption of marriage can arise or not. Such determination has consequence to the parties in terms of ascertaining matrimonial property rights and distribution and succession. 

The Marriage Act, 2014 codified five types of marriage recognized in Kenya, i.e. Civil, Christian, Customary (which now has to be registered), Hindu and Islamic marriage.  

We do infer from such codification of the types of marriage that the law has tried to cure the uncertainty that arises from presumption of marriage and to protect parties from the effect of a court of jurisdiction making a finding that the presumption of marriage does not arise in their circumstances.  

Even so, parties who still have not contracted either of the recognized forms of marriage in Kenya still apply to court that a presumption of marriage does arise in their circumstance. In this article, we examine recent jurisdiction to get a clearer picture on whether presumption of marriage is still viable in Kenya, post The Marriage Act, 2014. 

Does Presumption of Marriage arise Post the Marriage Act, 2014? 

The courts are seats of justice and with the codification of the law, they cannot in good conscience turn away persons who claim to be married only on the fact that they are neither married in a civil, Christian, customary, Hindu or Islamic marriage. 

The courts are also courts of evidence and the evidence of parties on a balance of probabilities will help the court ascertain whether a presumption of marriage arises. The courts have overtime laid out parameters that guide them in making such determination when the question of presumption arises. 

The Supreme Court of Kenya recently codified the parameters in Petition No. 9 of 2021 MNK vs. POM [2023] to be considered and we look at the same below; 

Brief facts  

POM asserted that he and MNK begun their cohabitation in 1986. He further made a case that from joint savings, they had purchased some assets that were then registered solely in MNK’s name. POM further asserted that over the course of the years, he and MNK had contributed to the improvement of the acquired assets and he ran a business from the said premises until MNK allegedly evicted him from the said asset, termed as matrimonial home in 2011, which asset generated income of Kes. 258, 100/- per month. 

MNK on the other hand denied POM’s involvement in the purchase of the asset and asserted that she had allowed POM to manage the asset as they were friends. She further asserted that in fact, she was already married under customary law to one KM and after KM’s death in 2011, POM intensified harassment to coerce her into marriage. 

The High Court found that although there was long cohabitation between MNK and POM, the principle of presumption of marriage was inapplicable seeing as MNK was already married to KM thus she did not have the capacity to marry POM. 

On the other hand, the Court of Appeal quashed the decision of the High Court and held that indeed a marriage could be presumed. The court further ordered that the assets should be divided/shared between MNK and POM, equally. 

Aggrieved by the decision, MNK appealed to the Supreme Court of Kenya. 

Analysis of the Proceedings and Judgment
1. The Applicable law; 

The Court noted that this matter was filed in court in 2011, which was before the Marriage Act 2014 and the Matrimonial Property Act 2013 were enacted into law. With regard to this, the court reiterated the principle that all law is prospective, a retrospective effect is not to be given to them, in other words, the law is not applied backwards. 

The provisions of the Marriage Act 2014 and the Matrimonial Property Act 2013, were therefore not applicable to this matter.  The question arises therefore, what of matters filed post-2014? We shall get to this later on in this article. 

 2. The Elements that can give rise to a Presumption of Marriage are as follows; 

1. The parties must have lived together for a long period of time. 
2. The parties must have the legal right or capacity to marry. 
3. The parties must have intended to marry. 
4. There must be consent by both parties. 
5. The parties must have held themselves out to the outside world as being a married couple. 
6. The onus of proving the presumption is on the party who alleges it. 
7. The evidence to rebut the presumption has to be strong, distinct, satisfactory and conclusive. 
8. The balance of proof is on a balance of probabilities. 

While laying out these principles, the Honorable court opined that the doctrine of presumption of marriage is on its deathbed, which reasoning was reinforced by the changes to the matrimonial laws in Kenya. The court further opined that the presumption of marriage should only be used sparingly, where there is cogent/strong evidence to buttress it. 

The court further took judicial notice of the fact that parties are increasingly cohabiting without the desire, wish or intention to be within the confines of matrimony. The court opined that where such a situation is evident and there is no intention whatsoever of contracting a marriage, the presumption of marriage must never be made as this intention does not exist. 

The court further emphasized that marriage is a voluntary union and that courts should shy away from imposing “marriage” on unwilling persons. 

The presumption of marriage is the exception rather than the rule. 

What next? 

The lives of cohabiting partners intertwine in several ways e.g. they have children, acquire assets and invest together, acquire liability for the benefit of the union or family as the case may be. Should separation or death occur, then the union is exposed in the following way; - 

1. Burial disputes may arise: We have seen several cases where the family wants to bury their kin and state that such kin was not married. This can give rise to court battles even in time of grief. 
2. Succession disputes arise, especially where the deceased did not have a valid written will or had not incorporated a family trust: The first issue the court will need to determine is whether the remaining party was a spouse of the deceased. 

Long-drawn succession battles thereby ensue as the court will need to determine who will administer the deceased’s estate, whether or not the remaining partner was spouse to the deceased and whether or not they can inherit from the deceased. 

The estate wastes in such circumstances, needs go unmet and even affects children of the union. 

   3. Division of assets where cohabiting partners separate: - 

• Were assets acquired during the cohabiting period to be considered matrimonial property? 

Section 6 of the Matrimonial Property Act, No. 49 of 2013 has defined matrimonial property as; the matrimonial home(s), household goods and effects in the matrimonial home(s), any other immovable and movable property jointly owned and acquired during the subsistence of the marriage. 

Where parties are unable to decide on separation of assets and other interests, then the court will have to make the decision and this is dealt with through a three-prong approach:(This may vary on case-by-case basis) 

• Parties will need to ask the court to find that the cohabitation gave rise to a presumption of marriage then thereafter, dissolve the said marriage. Only then, can they apply to have matrimonial property shared between them, of course after proving monetary and/or non-monetary contribution to the acquisition of the said assets. 

Conclusion 

There is no guarantee that a court will indeed find that a marriage can be presumed from the cohabitation.  

The Marriage Act 2014 provides a cure for this as persons can contract a Civil, Christian, Customary, Hindu or Islamic marriage.  

For customary marriages, it is necessary that the same is registered as is required by the law.(Link article we did on non-registered customary marriages). 

The principle of presumption of marriage is on its death bed thus cohabiting partners lack security that is crucial in any union. Investing and remaining in a cohabiting union can prove costly and affect the parties involved financially, mentally and socially. The provisions of Article 53 of the Constitution of Kenya and the Children’s Act 2022 protect children, whether or not born in a marriage union and this can be relied upon in protecting the interests of children born from such unions. 

Parties in such a union can contract any of the forms of marriage that Kenyan law recognizes and while at it, sign a Pre-Nuptial Agreement (link article) that protects assets that have already been acquired between them during the cohabitation period. 

Estate planning for persons in such a union is necessary, if not important. Various estate planning tools can be explained to such parties by a competent family law and private wealth advocate. 

How can we help?  

Contributors. 

Nel & Maureen