A presumption of marriage being a presumption of fact is not a marriage but a supposition of the existence of a marriage, which can be rebutted by evidence to the contrary.
Presumption of marriage, also known as marriage by long cohabitation has its origin in the common law of England. There being no statute enacted to regulate cohabitation in Kenya prior to 2014, Kenyan courts relied on the substance of Common law to fill in the gap.
According to section 119 of the Evidence Act, “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”. It is on this basis that courts presumed marriages into existence prior to the enactment of the Marriage Act, 2014.
Though the Evidence Act empowered courts to make presumptions of fact, it did not provide a clear framework within which a marriage would be presumed. Consequently, courts turned to common law for guidance.
The Common law presumption of marriage was drawn from long cohabitation and acts of general repute. One of the earliest cases in which the two ingredients of presumption of marriage were established in Kenya is Hortensiah Wanjiku Yawe v The Public Trustee Court of Appeal Civil Appeal 13 of 1976.
The seed having been sown in the Kenyan legal system through that case, the doctrine took root and grew in application. One instance of such application is found in the Court of Appeal reasoning in Phylis Njoki Karanja & 2 others v Rosemary Mueni Karanja & Another NRB CA Civil Appeal No. 313 of 2001 [2009] eKLR, where the court stated that, “Before a presumption of marriage can arise a party needs to establish long cohabitation and acts of general repute; that long cohabitation is not mere friendship or that the woman is not a mere concubine but that the long cohabitation has crystallized into a marriage and it is safe to presume the existence of a marriage…”
The enactment of the Marriage Act brought more clarity and certainty with regards to cohabitation and marriage. The Act defines marriage as the voluntary union of a man and a woman whether in a monogamous or polygamous union, and registered in accordance with the Act. Cohabitation on the other hand is defined as an arrangement in which an unmarried couple lives together in a long-term relationship that resembles a marriage. From these definitions emerges an understanding that cohabitation is not a marriage but merely a semblance of a marriage. Further, the co-existence of an unmarried couple during cohabitation does not create a marriage.
The Marriage Act clears the traditional blurry line between marriage and cohabitation since having stated that cohabitation is not a marriage, it completely omits to classify it as a type of marriage within its typology of Marriages.
A casual glance at section 6 of the Act reveals with sharp precision that only five types of marriages are legally recognised in Kenya. These are; Christian Marriages, Civil Marriages, Customary Marriages, Hindu Marriages and Islamic Marriages.The Act expressly excludes presumption of marriage or marriage by cohabitation as a types of marriage.
It is against this backdrop that a host of issues arise:
Whether the Marriage Act, 2014 rendered presumption of marriage obsolete.
Though the salient constituents of presumption of marriage are long cohabitation and acts of general repute, acts of general repute are merely off shoots of long cohabitation. Cohabitation remains the heart and soul of presumption of marriage.
It is noteworthy therefore that the Marriage Act radically lowers the status of cohabitation as seen under Common law. Section 3 of the Act expressly states that cohabitation is not a marriage while section 6 excludes it as a type of marriage. The definition of marriage as that which is concluded and registered in accordance with the Act, and the requirement that all marriages concluded before the commencement of the Act be registered says it all.
In that light, an attempt to presume a marriage into existence other than through registration in accordance with the Marriage Act offends sections 3, 6 and 96 which define marriage and cohabitation, outline the legally recognized types of marriages and emphasize the registration of marriages even those concluded before the commencement of the Act.
Since Presumption of marriage was drawn from common law to fill a gap that existed with regard to cohabitation, the same has been rendered obsolete since the Marriage Act is already in place to regulate cohabitation. There’s no longer a gap in law on cohabitation to be filled with common law.
Further, Section 3(1) of the Judicature Act which enlists the sources of law in Kenya in their hierarchical order provides that Kenyan Acts of parliament are superior to Common law provisions. Where legislation regulates a particular issue, common law does not apply. The enactment of the Marriage Act therefore ousts the application of Common law’s presumption of Marriage in Kenya.
What is the legal status of unregistered marriages concluded before the commencement of the Marriage Act?
Marriages concluded before the enactment of the Marriage Act were required to be registered within three years of the Act coming into force. Since the marriage Act came into force in 2014, the three years duration lapsed in 2017. Though the Act provides that the Cabinet Secretary may extend the registration period by notice in the Gazette, there hasn’t been any gazettement in that respect.
Further, subsisting marriages which constituted valid marriages under any written or customary law in force immediately before the coming to force of the Marriage Act are valid for the purposes of the Marriage Act.
What is the legal status of unregistered marriages concluded after the commencement of the Marriage Act?
The Marriage Act now defines a marriage as that concluded and registered in accordance with the Act. Accordingly, a marriage that is not registered under the Marriage Act does not constitute a valid marriage but merely cohabitation. The marriages concluded in accordance with the appropriate formalities but not registered are voidable.
Whether parties to an unregistered marriage can inherit under the Law of Succession Act
The law of Succession Amendment Act 2021 assigns spouses the definition in the Marriage Act. Spouses are husbands or wives of legally valid marriages. Since a valid marriage is that which is concluded and registered in accordance with the Marriage Act, only spouses of registered marriage unions can legally inherit under the Law of succession Act. Couples in cohabitation arrangements are not spouses since the Marriage Act expressly states that cohabitees are not parties to a marriage. In that regard, cohabitees cannot inherit from each other under the Law of Succession Act.
What is the legal status of children born out of cohabitation?
The law does not treat children born out of cohabitation differently from Children born of valid marriage unions. Article 53(e) of the Constitution entitles every child to the right to parental care and protection which includes equal responsibility of the mother and the father to provide for the child, whether they are married to each other or not.
The constitution protects the Children’s right to know their parents and rightly benefit from their protection and care. Being born out of cohabitation does not deprive children from cohabitation relationships of any of their rights.
Conclusion
The Marriage Act juxtaposes marriage and cohabitation with the intent of highlighting the fact that cohabitation falls short of what the Act considers a marriage.Cohabitation is not a marriage. Further, no length of cohabitation can crystallize into a marriage unless parties to the arrangement comply with the formalities in the Marriage Act, and ultimately register their union as a marriage. As such, presumption of marriage by long cohabitation other than marriage by registration offends the provisions of the Marriage Act. Further, while children from unregistered marriage unions enjoy equal protection of the law as children of valid marriages, parties to unregistered marriages cannot inherit from each other under the Law of Succession Act.
