Why you should make your marriage official

In 2020, a woman identified as MNK in court documents, petitioned the Supreme Court over a property dispute

The Court of Appeal had awarded her and a man identified as POM equal share of the property on grounds that there was a presumption of marriage between the two.

This is after POM appealed the ruling of the High Court, which had left him emptyhanded as it concluded that they were not married hence, division of the property was void.

At the centre of the dispute was a portion of land in Dagoretti/Riruta in Nairobi County, which they both had contributed towards its purchase, they said.

The case started in 2012 at the Nairobi High Court, when POM filed a civil suit No.6 of 2012.

Matrimonial property

It was premised on Married Women’s Property Act (1882) which was repealed in January 2014, upon enactment of the Matrimonial Property Act. The new law only recognises matrimonial property as that acquired by a couple, officially recognised as wife and husband.

The Married Women’s Property Act, on the other hand, does not interpret the circumstances under which a woman is considered married, but offers that a married woman can acquire and sell off property as an individual.

The man, POM, said they had cohabited as husband and wife since 1986 and during their stay together, they used joint savings to purchase the land.

In the court documents, POM of Kisii tribe said the property ended up being registered in her name because the seller, a Kikuyu, the same tribe as MNK, was uncomfortable selling the land to an individual outside their tribe.

They later developed it and constructed rooms. In the court documents, POM said he had done legwork in ensuring the premises were connected with electricity, sewerage, and water.

Rent collected

He said one of the rooms served as their matrimonial home, and he also operated a bar from the premises.

In 2011, however, MNK evicted POM when the amount of rent collected from the premises was Sh258,100 per month.

But MNK denied all the claims saying he wasn’t involved in the purchase of the land and that she only allowed him to manage the property because they were friends.

According to her, she was already married under customary law to one KM who died in 2011. She said although they were separated, she never divorced him. Therefore, she did not have the capacity to contract another marriage while her first marriage was still subsisting.

On June 9, 2017, the High Court found that “although there was long cohabitation between the parties, the principle of presumption of marriage, was inapplicable under the circumstances seeing that the appellant was already married to KM.”

Presumed marriage

The man, POM, was unhappy with the ruling and so he lodged an appeal at the Court of Appeal case No.343 of 2017.

The appellant court held that “the High Court erred in finding that there was long cohabitation but declined to presume marriage because of a one KM, whose existence the Court of Appeal found was not proved.”

It, therefore, presumed the existence of a marriage and ordered the property in question to be divided into two halves and each to receive the 50 per cent.

MNK was aggrieved by this ruling and hence, proceeded to the Supreme Court on ground that the civil suit was a matter of public interest. The case registered under No.5 of 2020.

The case was limited to two issues; whether parties to a union arising out of cohabitation or in a marriage unrecognised by law, can file proceedings under the Married Women’s Property Act. If so, upon what basis that would be done. And what relief was available for POM and MNK.

In her submissions, she said the Married Women’s Property Act, has been overtaken by events and cannot be used to establish a marriage by presumptions. At the same time, the current Marriage Act (2014) does not recognise marriage by cohabitation, she argued.

Intention to marry

She argued that courts should not be used to force parties into a marriage relationship through the doctrine of presumption of marriage.

She said: “Mere cohabitation without any evidence on capacity, consent, and intention to marry is not enough to establish a marriage by presumption, especially in a situation where one party is denying consent, capacity, and intention to marry.”

But the respondent, POM, disputed her arguments saying under the Married Women’s Property Act, the term marriage applies to all marriages; recognised or unrecognised in law.

He agreed with the finding of the Court of Appeal on marriage and division of the property and urged the Supreme Court to uphold its ruling.

The Supreme Court then set out parameters to determine presumption of marriage, namely the fact that the man and woman must have lived together for a long period of time, have legal right or capacity to marry and have intention to marry.

That both must consent to the marriage and hold themselves out to the outside world as being a married couple.

Evicted

And the onus of proving the presumption is on the party who alleges it, while the evidence to rebut the presumption has to be strong, distinct, satisfactory and conclusive. Similarly, the standard of proof is on a balance of probabilities.

It, however, put a disclaimer that “the doctrine of presumption of marriage is on its deathbed of which reasoning is reinforced by the changes to the matrimonial laws in Kenya.”

As such, this presumption should only be used sparingly where there is cogent evidence to buttress it, it advised.

In conclusion, the court found that the presumption of marriage between POM and MNK did not exist.

Nevertheless, there was evidence that the man, POM, paid for the water and electricity connection charges and bills from when the property was constructed to 2011 when he was evicted from the property. And that jointly, the parties have made several improvements on the property.

It, therefore, inferred common intention in the appellant and respondent’s conduct during the existence of their relationship and thus awarded the woman 70 per share of the property and the man, 30 per cent.

The January 27, 2023, ruling, according to family lawyers, is an affirmation of the importance of officiating a marriage.

“What this ruling tells us is that if your intention is to get married, then let both of you make it official,” says Nyokabi Njogu who represented Initiative for Strategic Litigation in Africa, enjoined in the case as Amicus Curiae.

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