Come-we-stay marriages post the 2014 Marriage Act-recent jurisprudence

The Marriage Act, 2014 does not recognize long cohabitation as a form of marriage as was the case before its enactment in the Bills. The issue of long cohabitation was among the contentious issues that were left out in the Act and which were

A couple during a marriage celebration in Nairobi, Kenya.

in earlier drafts/bills, the other issue having been the banning of bride price payment.
In July this year, the High court of Kenya in R L A v F O & Another [2015[] eKLR had chance to deal with an issue of presumption of marriage due to long cohabitation under the regime post the enactment of the Marriage Act, 2014 and correctly stated in part that under Section 6 of the Marriage Act, 2014 there are only five types of Marriages that are recognized in Kenya.
That Section of the Marriage Act, 2014 provides: –
“6 (1) A marriage may be registered under this Act if it is celebrated:-
a. In accordance with the rites of a Christian denomination;
b. As a civil marriage;
c. In accordance with the customary rites relating to any of the communities in Kenya
d. In accordance with the Hindu rites and ceremonies; and
e. In accordance with the Islamic Law”
Justice Mabeya in that decision however observed ‘It would seem that marriage by long cohabitation is not recognized under that Act. Does this however, do away with those relationships where couples have lived together as man and wife for years even whose relationships have ended up with children? I do not think so.’ This holding essentially means that such marriages, though not expressly recognized under the Marriage Act, are still recognized in law and by Kenyan courts.
The High court quoted with approval an earlier decision of the court of appeal in Hortensia Wanjiku Yahweh Vs Public Trustee C.A No. 13 of 1976 where it was stated: ‘The presumption is nothing more than an assumption rising out of long cohabitation and general repute that the parties must be married irrespective of the nature of the marriage actually contracted’
Indeed, the High court in the R L A v F O & another [2015[] eKLR case further stated that, even with the repeal of the previous seven (7) Marriage Statutes and enactment of the Marriage Act, 2014, the principle[of presumption of marriage by cohabitation] is still good law as was in 1976 and made reference to the Court of Appeal decision in VRM Vs MRM & another (2006) eKLR and Rosemary Aoko Munjal VsNoel Namenya Munja (2015) where it was so held.
The court went ahead to determine whether or not there was a marriage by reputation, i.e. long cohabitation which the court stated that it is popularly known as Common Law Marriage. This signified that the court actually recognized existence of such marriages.
As to the parameters to determine whether to presume the marriage, the court stated that for a marriage to be presumed between a couple;
i. The two must have cohabited
ii. The cohabitation must be long and uninterrupted and;
iii. The couple must have carried themselves as man and wife not only to their close friends but also relatives and other acquaintances. Their actions and lifestyle should leave no doubt in the minds of those who know them and even strangers that the couple must be in a marriage relationship and not necessarily a relationship of convenience.
In that case however, the court found that there was no marriage by cohabitation. It was a relationship or friendship of convenience.
Another decision from the High court, differently constituted, took a similar approach the same month of July this year. This was in the case of S.W.G v H.M.K [2015] eKLR where Musyoka J. stated ‘Where a marriage does not comply with the relevant formalities laid down by the Marriage Act or under customary law, it may be rescued by presumption of marriage by cohabitation.’
The court stated that the presumption may be made in circumstances where a man and a woman have cohabited for such a length of time and in such circumstances as to have acquired the reputation of being man and wife. A lawful marriage between them will be presumed to have taken place, though there be no positive evidence of any marriage having taken place, and this presumption can be rebutted only by strong and weighty evidence. (See Rayden and Jackson’s Law and Practice in Divorce and Family Matters, 17th Edition, Butterworths, 1997). A marriage may be presumed if the facts and circumstances show the parties by a long cohabitation, or other circumstances, evinced an intention of living together as husband and wife.
The court in this case grounded its decision in the Evidence Act. It noted thus ‘The doctrine of presumption of marriage has a statutory foundation, in Section 119 of the Evidence Act, Cap 80, Laws of Kenya, where it is provided 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 public and private business, in their relation to the facts of the particular case.”
In conclusion, though not recognized as a marriage under the Marriage Act, 2014, courts seem to take the view that a marriage can be presumed by virtue of long cohabitation. This position has been anchored in the Evidence Act on presumptions of fact. In my view, it can also find anchorage in Section 3 of the Judicature Act where common law is recognized as part of the laws of Kenya and the doctrine of presumption of marriages is a common law doctrine.