MOI UNIVERSITY BY KIRUI KIPRONO CALVIN

SCHOOL OF LAW (LLB STUDENT)

FAMILY LAW-COHABITATION AND ITS LEGAL IMPLICATIONS

INTRODUCTION

Cohabitation refers to unmarried heterosexual couples living together in an intimate

relationship. They are fact arrangements, not sanctioned by either civil or religious or
customary authority but where a man and a woman decides to live together as husband and
wife. The Marriage Act 20141 defines to cohabit to mean to live in an arrangement in which an
unmarried couple lives together in a long term relationship that resembles a marriage.

Cohabitation relationships involve a shared household between intimate partners and have
characteristics in common with marriages e.g pooled economic resources, a gender division of
labor in the household and sexual exclusivity. The partners have voluntarily consented to
cohabit and the marriage act prohibits proceedings to compel a spouse to cohabit with the
other but a spouse who alleges that he or she has been deserted may refer the matter to
conciliatory body2.

In Kenya, there are no available statistics on cohabitants because they were not recognized by
the state. The law recognized only five systems of marriages listed in the marriage act section
6(1) and they include civil, Christian, Hindu, Islamic and customary marriages. Because of this
lack of legal recognition, cohabitants were not given the same rights as the married partners,
regardless of the length and commitment of the relationship. Their rights are entirely based on
whatever legal provision relate to the single persons involved. Financial responsibility for the
other partner extended only to the to a liability to pay council tax and not to ordinary financial

1
Section 2
2
Section 84(2)
support as was decided in Winderler v Whitehall3. In Burns v Burns4, Mrs Burns who had
changed her name by deep poll, had two children with Mr.Burns and contributed in practical
and financial terms to the household for 19 years, received nothing on the breakdown of the
relationship as she could not bring herself within the law of the trusts so as to do so, whereas
had she been a wife, she would have received half or more of the value of the property or at
least the rights to live in it until the children were independent.

Although cohabitation was initially not recognized in Kenya, courts had developed the common
law principle of presumed marriage, conferring some marital rights and duties on cohabiting
couples meeting certain criteria. The exact criteria vary but judges generally weigh the length of
cohabitation, whether there are children and whether the man and woman hold themselves as
husband and wife, the quantitative and qualitative cohabitation.

A. LENGTH OF COHABITATION

I the case of Milka Githikia Kamau v Faith Wangechi Kamau5, the court held that the applicant
could be presumed as the wife of the deceased . This is because it stated that the court would be
unconscionable for it to hold that the applicant was a mere imposter looking out to enrich herself.
All the years(1990-1999) the applicant had cohabited with the deceased, she must have held an
expectation that she was the legitimate wife of the deceased and therefore entitled to a share of
the deceaseds estate.

In some instances relatively short periods of cohabitation may be presumed to be a marriage . In R vs

Fita s/o Mihayo, the accused cohabited with a lady for between 4 8 months. The accused
found the lady performing a sexual act with another man and promptly killed the man. In his
defense, on a charge of murder, the accused claimed that he was provoked. The Court then had to
consider whether the aforementioned period of cohabitation could be presumed as marriage. The
accused relied on customary law, which provides that a man can take a woman as a wife and
cohabit with her even before payment of dowry. If the woman then involves herself with another

3
(1990)2 FLR 505
4
(1984)Ch 317
5
2008)eKLR
man, that would amount to provocation. The court therefore held that the 4-8 months
cohabitation constituted marriage and the charge against the accused was reduced to
manslaughter.

B. INTENTION TO ESTABLISH THE RELATIONSHIP OF MAN AND WIFE

In the case of KISITO CHARLES MACHANI vs ROSEMARY MORAA6, the plaintiff sought
various orders; inter alia, a declaration that the defendant is not the wife of the plaintiff. The
defendant filed a defense in which she stated that she was the plaintiffs wife according to Kisii
Customary Law and/or by virtue of the common law presumption of a valid marriage following a
long period of cohabitation as husband and wife and acceptance by the community, they had
sired three children. The brother of the plaintiff testified that no dowry and no formal marriage
ceremony of any nature whether by law or custom or in church took place at any time. The court
stated that it had no hesitation in finding that whilst none of the formal ceremonies which would
normally be expected to be performed in a Kisii Customary Marriage were in fact performed,
nevertheless the intention in the relationship between the plaintiff and the defendant was to
establish the relationship of man and wife and that both families knew so and accepted so.

C. NEED FOR QUANTITATIVE AND QUALITATIVE COHABITATION

Mary Njoki v John Kinyanjui Mutheru & others7. Mary njoki was a girlfriend of the deceased
since her university days and his at the Kenya school of law. They were to be seen together
during the holidays. He would save money from his pocket money and send to her at campus.
After there graduation they lived together at different places and then the deceased expired.
Njoki sought a share of the deceased estate. This move was opposed by the deceased brothers
who argued that she was not the deceased wife. The court held that the presumption of
marriage could not be upheld here. The judges stressed the need for quantitative and
qualitative cohabitation long and having substance. They gave examples as in having

6
HCCC MISC. NO. 364 OF 1981 NAIROBI
7
CA71 of 194
 children together, buying property together which would move a relationship from the realm
of concubinage to marriage

STATUTORY RECOGNITION OF COHABITATION IN KENYA

Cohabitating have a long history in our society and the world over. Despite the fact that these
unions have faced religious condemnation, they appear to be now very prevalent and more so,
among youths. The state of affairs is even emerging to be the acceptable norm. Majority of the
young Kenyans are cohabiting and the situation can no longer be ignored or assumed. Further,
people who may not have means to carry out traditional or civil marriages have also taken
advantage of this state of affairs to engage in these unions to substitute a formal marriage. Due to
this prevalence of cohabitation, it has necessitated the recognition of the law.

Some legislations that recognizes, confer rights and responsibilities to cohabiting parties have
been enacted. The Marriage Act 2014 recognizes cohabitation in its definition to mean to live in
an arrangement in which an unmarried couple lives together in a long-term relationship
resembles a marriage. It therefore means that the law is alive of its existence. In 2012, a Marriage
Bill was drafted that sought to recognize presumed marriages occurring after six months of
continuous cohabitation and provided for maintenance of the spouses and children although this
provision was not passed in the final draft.

The childrens Act8 which states that, where a childs father and mother were not married to
each other at the time of his birth but have subsequent to his birth cohabited for a period or
periods which amount to not less than twelve months, or where the father has acknowledged
paternity of the child or has maintained the child, he shall have acquired parental responsibility
for the child, not withstanding that a parental responsibility agreement has not been made by the
mother and father of the child. This has the effect of protecting the parentage of children sired in
a cohabitation union.

8
Section 25(2)
.

REASONS FOR COHABITATION

The main reason is that cohabitation serves as a transition stage between the single and married
life. It is a trial marriage meant to assess viability and compatibility of the partners before a long
commitment to marriage. Other reasons include:

i) Observation that most marriages have serious marital problems and the rising cases of
divorce and separation make young people question the importance of marriage.
ii) Less complicated dissolution than marriages.
iii) Increased intimacy opportunity to share sexual and emotional intimacy without getting
married and without being seen as a promiscuous.
iv) It offers more freedom than marriage since the partners are not legally bound.
v) High cost of marriage in the midst of rising economic difficulties and high
unemployment rates and thus the feeling among young men of why buy the cow when
you can get the milk free most girls and women have been through school today and
their parents make very high bride wealth demands for their educated daughters.
vi) Economic advantages cohabitation offers an opportunity to save money by sharing
expense s especially if the two are employed.
vii) Cohabitation is not entangled and wound in legitimate and religious laws as marriage,
wherein it is challenging for a lady to get separated from her life partner easily.
viii) They can easily break up their commitment at whatever time they need. They are
not lawfully bound to live together until the end of time. They don't have to visit courts to
get separated legally.

MORAL IMPLICATION OF LEGAL RECOGNITION OF COHABITATION

Cohabitation is a practice that has been condemned by religious groups and its frowned at by
the conservative African communities. This is because its novel to the African society and it is
believed to be a practice that leads to moral decadence. The moral implications of cohabitation
are however varied. There are positive implications as well as negative implications.

1) POSITIVE IMPLICATIONS
I. Social recognition and availability of safe or protected sex. Cohabitation is not an official
impediment to marriage and it provides a platform of having sexual relationships with
one partner which reduces the risk of contracting sexual transmitted diseases and
unwanted pregnancy as opposed to where unmarried people seek sexual satisfaction
from different people.
II. The delay in marriage for education and the fact that youths mature slowly has made
couple come together and build their lives up along the way to adulthood hence
cohabiting is a positive9
III. Cohabiting before marriage strengthens the marriage later between the couple. This is
because the couple starts investing in the relationship long before marriage hence
harder to break the relationship.10
IV. Couples who cohabit before marriage have be more prepared for and confident about
marriage having already lived together. This preparedness and confidence should thus
lead to lower divorce rates for those who cohabit before marriage than those who
dont.
V. The risk of divorce is much higher for couples who lived together before they got
married than for couples who did not cohabit11
2) NEGATIVE IMPLICATIONS
I. Recognition of cohabitation in the law gives the impression that its permissible
and therefore a necessity to attempt to diminish the possibility of marital

9
Casey copen- m.dailybarometer.com
10
Berkeleysciencereview.com
11
Balswick and balswick, pp75-84
 unhappiness and the long process of divorce. This makes cohabitation a threat
to marital happiness and stability of marriages and society. The church teaches
that cohabitation with sexual union between unmarried is sinful (catechism of
the catholic church No. 2350-2400) and as such undermines the very holiness of
life one seeks in the sacrament of matrimony.
II. Role ambiguity. Some of the struggles that arise from cohabiting is the vaguely
defined role of the cohabiting partner. No partner has explicit legal, financial,
supervisory or custodial rights or responsibilities towards (his/her) children,
his/her partner12.
III. Men and women who cohabit are more likely to experience partner abuse and
infidelity.13
IV. The temporary nature and informal nature of cohabitation makes it more
difficult and riskier for the couple or extended family to invest in and support the
relationship. Parents, siblings and friends are less likely to to het to know a
cohabiting partner than a spouse and less likely to incorporate a person that
person into the activities, ceremonies, and financial dealings of the family.
Parents of one member of the cohabiting couple are ill-advised to invest in the
relationship until they see if the relationship is long term.
V. Cohabiting seems to distance people from important social institutions especially
organized religions because they are disapproved and discouraged.
VI. In this time and age when men and women are searching for formal employment
and wealth creation alike, many are the times when either of the spouses in a
marriage will be required to provide legal proof of marriage in order for them to
carry out certain transactions.
3) IMPACT ON CHILDREN
1. Spending extended time in a cohabiting household at an early age is linked to
slowed cognitive growth and language acquisition in children.14 Marriage may

12
Waite
13
Waite
14
Susan L. Brown- Center for family and Demographic reserch
 not make people happier, healthier and more financially secure. Instead, happy,
healthier, secure individuals are more likely to marry in the first place.
2. Povertyis higher in cohabiting homes, around 23%. By contrast, the poverty rate
for married couples is just 7%15.
3. Children born to cohabiting households are more likely to experience parental
break up16.
4. Children born to chabiting parents initiate sex at an earlier age and are more
likely to have teenage births than children born to married parents17.
5. Children in living with cohabiting parents are more likely to indulge in drug abuse
and their chances of succeeding in life are lessened. This is because cohabiting
relationships tend to be characterized by less commitment, less sexual fidelity,
more domestic violence, more instability and more insecurity these kind of
relationship factors dont foster an ideal home for the children.18

CONCLUSION

Legal recognition of presumed marriages brought about by cohabitation should be handled

with great care because it has both negative and positive moral implications as well as impacts
on children. The courts should be extra careful when deciding on cases of this nature so as to
set a clear standard and factors that need to be proved in order to sustain a presumed
marriage. This is because consistent precedents need to be made clear in order to make the law
predictable.

The courts should set a higher standard that couples need to meet in order to be presumed
married. The sanctity of marriage should be preserved and the courts should create an
impression that marriages sanctioned by civil, religious and customary authority confers more
privileges, rights and responsibilities than presumed marriages. Although freedom of living
together should not be curtailed, parties to a cohabitation should know the implications of their

15
ResearcherLinder Waite of the University of Chicago
16
Brown
17
Ronald Bulanda and Wendy Manning-2008
18
Brad Wilcox- live.washingtonpost.com
living together. Where children becomes the outcome of the cohabitation, the interest of the
children should come first. The courts should have clear criterion on the thresholds that a
relationship should meet in order for the parties to be presumed married.

Religious organizations should change their tact of teaching cohabitation and acknowledge the
reality that they exist and the couples need religious guidance rather than completely shunning
the couples.

Statutory provision of cohabitation should be enacted to provide for the requirements to be

met by cohabiting couples in order to be legally recognized as married. The legislatures should
however create a higher standards and requirements, for example, the time of cohabitation
should be lengthen, the cohabitation should be quantitative and qualitative, presence of
children should be considered and whether the couple held themselves out as husband and
wife. The standard of prove should be made higher.