Advocating for proprietary rights of cohabitees during separation in Kenya

Abstract

Cohabitation is increasingly becoming common in contemporary Kenyan society, yet the absence of a legal framework to protect the property rights of cohabitees presents significant challenges. The lack of clear legal stipulations leaves cohabiting couples vulnerable, particularly concerning proprietary rights at separation. Judicial actors are often forced to exercise discretion in these matters, relying on the common law doctrine of presumption of marriage and equitable remedies such as constructive trusts. However, this reliance on judicial discretion leads to inconsistencies and unpredictability in rulings, undermining the principle that law should be clear and certain. The presence of an unpredictable not only creates potential injustices but also marginalizes cohabiting couples who lack formal recognition and protection under the law. By analyzing primary and secondary sources through doctrinal research, this paper argues for a comprehensive legal framework that will safeguard the proprietary rights of cohabiting partners in Kenya. The theoretical framework guiding this analysis is John Locke’s labour theory, which posits that individuals gain ownership rights through their investment of labour and resources. The paper concludes with a comparative analysis, drawing lessons from South Africa’s legal culture and framework, which offers protections for cohabiting unions. Key findings highlight the need for statutory clarity, equitable property sharing mechanisms, and formal recognition of cohabitation. Recommendations include adopting legislation that explicitly defines cohabitation relationships, establishing equitable property division rules, and creating legal mechanisms for cohabitation agreements. These measures would enhance legal recognition and security for cohabiting partners in Kenya, fostering fairness and predictability.

Keywords: Cohabitation, Proprietary Rights, Universal Partnership, Cohabitation Agreement