The supreme court ruled that couples who have been cohabiting as proof of marriage may part ways in premium tears if no evidence is provided to support the presumption of marriage.
Supreme Court judges Philomena Mwilu, Smokin Wanjala, Njoki Ndungu, Isaac Lenaola and William Ouko warned that the doctrine of presumption of marriage is on its deathbed following changes to the matrimonial laws in Kenya.
The court said the presumption of marriage should only be used sparingly where there is logical evidence to support it. “It is becoming increasingly common for two consenting adults to live together for a long duration where these two adults have neither the desire, wish nor intended to be within the confines of matrimony,” they stated.
“Where such a situation is evident and there is no intention whatsoever of contracting a marriage, the presumption of marriage must never be made where this intention does not exist. It must always be remembered that marriage is a voluntary union. As such, courts should shy away from imposing ‘marriage’ on unwilling persons.” the court concluded.
This,the revealed that they recognised some existing relationships where couples cohabit with no intention whatsoever of contracting a marriage.“In such contexts, such couples may choose to have an interdependent relationship outside marriage. While some may find this amoral or incredible, it is a reality of the times we live in today,” they said.
The court observed the case where a person may have been in a marriage before and the marriage is no more due to the death of a spouse or divorce and due to their prior experiences, such persons may choose to have an interdependent relationship outside of marriage.
The judges said that for others, it may just be their desire never to marry but have a partner without the confines of marriage. “The pervasiveness of having interdependent relationships outside marriage over the past few decades means that no inferences about marital status can be drawn from living under the same roof,” they added.
Further,the judges urged the National Assembly, the Senate and the Attorney-General to formulate and enact Statute law that deals with ‘cohabitees’ in long-term relationships, their rights, and obligations.
This ruling came after a dispute arose between two long ‘cohabitees’ who were fighting for an equal share of a property that they jointly acquired.