The Supreme Court has ruled that cohabiting couples who do not intend to marry cannot automatically become a married union until they voluntarily wed.
This comes after a lengthy legal battle between respondent Paul Ogari Mayaka and his ex-lover appellant Mary Nyambura Kangara alias Mary Nyambura Paul.
According to court documents, the couple purchased a matrimonial home in Dagoretti during their long cohabitation (1986-2011).
When they divorced, Nyambura filed a claim in court for an equal share of the matrimonial property, but the claim was denied because the resulting cohabitation could not be presumed to be a marriage.
Dissatisfied with the High Court decision, the case was appealed to the Court of Appeal, which ruled that there was a presumption of marriage between the two parties and proceeded to divide the suit property in half, with a share for each.
The case was later heard by the Supreme Court, which determined that because there was no marriage between the appellant and the respondent, the Matrimonial Property Act, Act No. 49 of 2013, did not apply in the case.
According to the act, ownership of matrimonial property vests in the spouses based on their contribution to its acquisition and is 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 the parties shared a common intention at the time of purchase of the suit property, resulting in 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 a 70% to 30% ratio to the appellant.
In addition, the court ruled that, in the future, a marriage party must prove their contribution to the matrimonial property in order to determine their share upon divorce.
