Cohabiting for whatever period does not make you a married couple, court rules

Cohabiting for whatever period does not make you a married couple, court rules

The Supreme Court has ruled that couples who cohabit with no intention of getting married cannot automatically become a married union until they voluntarily wed.

This is after the court delivered a ruling in a long legal battle between respondent Paul Ogari Mayaka and his ex-lover appellant Mary Nyambura Kangara alias Mary Nyambura Paul.

Court documents show that during their long cohabitation (1986-2011), the couple acquired a matrimonial home in Dagoretti.

Upon their breakup,  Nyambura moved to court seeking an equal share of the matrimonial property and the claim for division of the property was dismissed because the resulting cohabitation could not be presumed to be a marriage. 

Dissatisfied by the High Court decision, the matter was moved to the Court of Appeal which ordered that held that there was a presumption of marriage between the two parties and proceeded to apportion the suit property into two halves, a share for each party.

The matter would later move to the Supreme Court where the court found that there existed no marriage between the appellant and the respondent therefore the Matrimonial Property Act, Act No. 49 of 2013 were not applicable in the matter.

The act dictates that ownership of matrimonial property vests in the spouses according to the contribution of either spouse towards its acquisition, and shall be divided between the spouses if they divorce or their marriage is otherwise dissolved.

"The Court also made a finding that presumption of a marriage is the exception rather than the rule and that the circumstances in which a presumption of marriage can be upheld, are limited," read part of the ruling.

"The Court has found there exists relationships where couples cohabit with no intention whatsoever of contracting a marriage; and that a marriage is a voluntary union and that courts cannot impose ‘a marriage’ on unwilling persons."

However, the Court determined that there was a common intention of the parties at the time of purchase of the suit property that gave rise to a constructive trust between them. 

Since they both contributed to the acquisition, improvement, and maintenance of the suit property, the Court apportioned the property at the ratio of 70 % to the appellant and 30% to the respondent. 

The court also ruled that going forward, a marriage party must prove their contribution to the matrimonial property to determine they share upon divorce.


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