A Comparative study assessing the need for a legal framework governing cohabitation in Kenya in light of New Zealand’s experience

Abstract

Cohabitation is a vastly adopted phenomenon in the 21st Century gaining traction as an alternative to marriage deserving of sui generis protection due to its unique trait positing a great deal for care and recognition of such parties in law. However, there has been little emphasis on how Kenyan law conceives cohabitation as a union concerning legal rights such as the division of property acquired among cohabitees upon separation, an attribute addressed by the Supreme Court of Kenya in the case of Mary Nyambura Kang’ara v Paul Ogari Mayaka. The legal framework governing cohabitation in Kenya is premised on the doctrine of the presumption of marriage and relies heavily on judicial precedents. However, what is of great essence to this research is that Kenyan courts' reliance on judicial precedents and the common law principle alone doesn't provide the required clarity and certainty on how to go about certain aspects of a union in cohabitation, such as property division, maintenance, and inheritance. This study aims to assess the feasibility of Kenyan courts applying a well-drafted comprehensive legal framework governing cohabitation for clarity. This study will apply doctrinal research in assessing the extent of the law in recognizing cohabitation as a union in Kenya and legal rights and remedies conferred to cohabitees by analysing scholarly works, case law, statutes, and regulations to prescribe its current legal and regulatory framework in Kenya. Furthermore, it recognises best practices in its comparative analysis between New Zealand and Kenya underlying the essence of having a well-drafted comprehensive legal framework governing cohabitation for the Court’s interpretation when deciding such disputes. Based on the findings, this study will make recommendations to address the due technicalities that arise during the division of jointly acquired property among cohabitees upon their separation. This provides the lawmakers with insights to advance legal clarity on this matter to address the due technicalities that arise when safeguarding rights and remedies among cohabitees during the union and upon their separation.