The Place of Cohabitation in Kenya
By: Joan Wambui Njau
Among the various socio-cultural shifts that have taken place in recent times, is the embrace of cohabitation as opposed to the more formal and traditional forms of marriage. Most couples have opted out of taking part in any of the legally recognized marriage ceremonies citing a number of other reasons for this shift. Younger couples are of the view that contemporary marriages are easily susceptible to breakdown and therefore they shy away from making such a long- term commitment. Further, the high cost of contracting a marriage which often includes bride price in customary marriages and other wedding expenses has been a deterrent for most couples.
Cohabitation is recognized under common law. Under the Kenyan legal framework, the place of cohabitation may be found through Section 3(1)(c) of the Judicature Act CAP 8 which recognizes common law as a source of law in Kenya. It may be further buttressed on the premise of Section 119 of the Evidence Act CAP 80 which states that, 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 private and public business, in relation to the facts of the particular case. Seeing as cohabitation arises out of human conduct and is of a perpetual nature, the courts may make a presumption. However, such a presumption is with regard to the following factors; the duration of the cohabitation and the reputation of the man and woman who claim to be in cohabitation. Finally, the term ‘cohabit’ is defined under Section 2 of the Marriage Act No. 4 of 2014 as ‘to live in an arrangement in which an unmarried couple lives together in a long-term relationship that resembles a marriage.’
In MNK v POM (2023), the supreme court of Kenya stated the precise conditions within which a court may presume the existence of a marriage. They include; parties must have lived together for a long period of time, parties must have the legal right or capacity to marry, parties must have intended to marry, there must be consent by both parties, parties must have held themselves out to the outside world as being a married couple, the onus of proving the assumption was on the party who alleged it, the evidence to rebut presumption had to be strong, distinct, satisfactory and conclusive and the standard of proof was on a balance of probabilities.
The court went on to state that presumption should be used sparingly as it is the exception rather than the rule. There must be sufficient evidence to anchor it. It further noted the fact that it has become quite ubiquitous for two parties to consensually live together for prolonged periods of time without the desire or intention to be bound in matrimony. Such parties should therefore not have the presumption of marriage imposed on them since marriage is a voluntary union.
While the prevalence of cohabitation cannot be denied, there exists a lacuna on the various rights accorded and obligations imposed on cohabitees in such a union. The Marriage Act, while defining cohabitation, remains silent on such rights and obligations. In recognition of this lacuna, the Supreme Court in the case of MNK v POM (2023) held that it was necessary to establish legislation that dealt with cohabitees in long-term relationships.
Legislators and policy makers in Kenya may look to other jurisdictions with more comprehensive or better laws for guidance in establishing our own statute regarding the rights and obligations of cohabitants. In this article, I will proceed to look at Scotland and England.
Family Law (Scotland)Act 2006.
Section 25 of the Family Law (Scotland) Act 2006 provides for the meaning of a cohabitant as ‘a man and a woman who are (or were) living together as if they were husband and wife.’ It further provides for the factors to be considered by the courts in determining whether a person is a cohabitant of another. They include; the length of period during which they have been living together or lived together, the nature of their relationship during that period and the nature and extent of any financial agreements subsisting, or which subsisted during that period.
In distribution of property, provided for under Section 26 &27, each party has equal shares in various forms of property including; certain household goods(any goods kept or used at any time during the cohabitation in any residence in which the cohabitants are or were cohabiting for their joint domestic purposes but does not include; money, securities, any road vehicle or any domestic animal) and money derived from any allowance made by either cohabitant for their joint or household expenses or for similar purposes or any property acquired out of such money. (property does not include the sole or main residence)
The Act further provides for financial provision where cohabitation ceases in circumstances that do not include death. Under Section 28, the court, in making such order for financial provision, may have regard to whether the defender has derived economic advantage from contributions made by the applicant or whether the applicant has suffered economic disadvantage in the interests of the defender or any relevant child.
England Cohabitation Rights Bill. (Originated in the House of Lords Session 2019-21)
Clause 2 of this bill states that cohabitants are any two people who live together as a couple and meet the following conditions; they are treated in law as being mother, father or parent of the same minor child; there is in force in respect of a minor child either a joint residence order in favor of the couple or a child agreement order stipulating arrangements by which a minor child is to live, spend time or otherwise have contact with both parties; the couple have lived together for a continuous period of 3 years or more; the couple are natural parents of a child en ventre sa mere(within the womb)at the date when they cease to live together whether or not that child is subsequently born alive; they are neither married to each other nor civil partners of each other; they are not within the prohibited degrees of relationship in relation to each other.
Under Clause 8, the bill seeks to empower the court to make financial settlement orders where it is satisfied that the applicant and respondent have ceased living together as a couple, that the respondent has retained a benefit or that the applicant has an economic advantage in respect of the qualifying contributions that the applicant has made. A financial settlement order may require one or more of the following; payment of a lump sum, transfer of property, property settlements, sale of property, pension sharing. The aforementioned legislations constitute more issues including provision for intestacy in cohabitation unions. In drafting our own laws, our law makers must take some of these key issues into consideration and in a similar light ensure that they match the Kenyan context. Some of the most pivotal provisions are; a comprehensive definition of ‘cohabitants’, prohibited degrees of consanguinity, various types of property that may be subject to distribution as well as mechanisms and criteria for distribution, circumstances to be considered for financial provision and the various financial settlement orders.
REFERENCES
Family Law (Scotland)Act 2006.
England Cohabitation Rights Bill
MNK v POM (2023)
TO COHABIT OR NOT? :THE PLACE OF COHABITATION IN THE SOCIAL AND LEGAL SYSTEM IN KENYA, Kenneth Ng’angá Moi University SSRN
