An Analysis of the status of cohabitants in Kenya law and the challenges they face

Abstract

The Marriage Act1 does not provide for cohabitation as a legal union m Kenya. It only recognizes Customary, Hindu, Islamic, Christian and Civil marriages.2 The Marriage Act does however provide a definition for the word cohabit to mean, "To live in an arrangement in which an unmarried couple lives together in a long-term relationship that resembles a marriage."3 The statement of the problem of this dissertation is that, failure of the law to recognize cohabitation as a legal union subsequently results in the lack of a clear stipulation with regards to the status of cohabitants in Kenyan law and more so on the protections allowed under such a union. The assumption is that parties in a cohabitation union are entitled to some of the rights and protection that parties in a legal union enjoy and that the parties are aware of these rights. The courts have attempted to accord these rights to the said parties and recognize cohabitation unions by applying the common law principle of presumption of marriage. The application of this principle in the Kenyan legal system has consequently attempted to provide a better understanding of cohabitation. This is discussed in the land mark case of Hortensiah Wanjiku Yawe v Public Trustee4 which set out the factors that are now considered when determining if there is a presumption of marriage between two parties.