Section 98 (1) of the Marriage Act, 2014 provides that a subsisting
marriage which under any written or customary law hitherto in force constituted
a valid marriage immediately before the coming to force of the Act is valid for
the purposes of the Act. Before the coming in force of the Act there was
presumption of marriage which has been saved by this section.
Substantive
and qualitative cohabitation can lead to presumption of marriage. However,
there is no specific time limit for cohabitation to give rise to presumption of
marriage. Presumption of marriage arises where a man and woman live with each
other and hold themselves out as man and wife. Under this presumption
they will be deemed to be married even if they have not undergone any formal
marriage ceremony. The presumption can exist under common law and African
Customary Law.
Various
judicial decisions have stated that this presumption existed under African
Customary Law. In the case of Hottensiah Wanjiku Yawe V. Public
Trustee C. A. 13 of 1976, the
court found that this presumption can also be found under African Customary Law.
Yawe, a person from Uganda resident in Nairobi was killed in a road accident in
Uganda in 1972. He was a pilot with East African Airways and lived in Nairobi
West. After his death, the Appellant Wanjiku claimed to be his widow and claimed
that she had 4 children. Some Ugandan claimants however denied that she
was his wife and that the deceased was not married. Evidence was called which
showed that the deceased lived with the Appellant as a wife and also when he
applied for a job he had named the Appellant as a wife and the two were reputed
as man and wife and cohabited as man and wife for over 9 years. The Court held
that long cohabitation as man and wife gives rise to presumption of marriage
and only cogent evidence to the contrary could rebut such a presumption.
In the
case of Peter s/o Mikhayo, the
accused cohabited with a lady for a period of between 4 and 8 months, then one
day he found his lady performing a sexual act in the bush with a man and
proceeded to kill the man. In his defence on charge of murder, he said
that the lady was his wife and he had been provoked to kill the man. The
court had to consider whether that period of cohabitation was long enough to
trigger a presumption of marriage. The court held that under Customary
law, that period was enough for marriage to be presumed and stated that under
customary law, the moment you start cohabiting the presumption is triggered.
For
there to be a presumption of marriage the cohabitation must be qualitative and
quantitative. In the case of Mary Njoki V. John Kinyanjui Mutheru &
Others CA 21 OF 1984, Mary
Njoki was a girlfriend of the deceased since her university days and his at the
school of law. They were to be seen together during the holidays.
He would save some money from his allowance and send to her at campus.
After their graduation they lived together at different places and then the
deceased expired. Njoki sued for a share of the deceased estate.
The brothers of the deceased objected Njoki’s contention that she was the wife
of the deceased. It was held that the presumption of marriage could not be upheld
here. The judges stressed the need for quantitative and qualitative
cohabitation. The cohabitation should be long and having substance.
They gave examples of having children together, buying property together which
would move a relationship from the realm of concubinage to marriage.
The
parties must have capacity for there to be a presumption of marriage. This was
emphasized in the case of Kizito Charles Moraa V. Mrs. Mary Rose Vernour
Alias Rosemary Moraa. C.A. NO. 61 OF 1984. The Appellant sued for trespass
and various acts of nuisance and a declaration that the Respondent was never
his wife. The Respondent had been married to a Mr. Vernour who had fathered one
of her children and they had gotten married in a marriage of convenience. She
had been a headmistress and a pregnancy would have embarrassed her. Mr Vernour
left for England whereupon the respondent moved to stay with the Appellant for
4 years and they had 3 children. Trouble started when they had a mentally
retarded child. It was argued in court on her behalf that a presumption of
marriage be held. The court held that she had no capacity to marry thus her
cohabitation was adulterous which had unfortunately brought forth children.
From
the foregoing, the number of years the parties have lived together is one of
the many elements which must be present to create a presumption of marriage.
Other elements such as having children together, buying property together are
considerations which must be present for marriage to be presumed. Generally, whether
or not there is a marriage depends on the circumstances of the case. A spouse
claiming that there is a marriage resulting from cohabitation should make an
application to the High Court for a declaration of presumption of marriage.
RIGHTS OF SPOUSES UNDER THE MARRIAGE
ACT
Section 3(2) of the Act states that
parties to a marriage have equal rights and obligations at the time of the
marriage, during the marriage and at the dissolution of the marriage. This
means that the husband and wife, for example, can sue one another for
maintenance. The spouses during marriage can own property jointly or
separately. Each spouse is entitled to an equal share of the joint property.
For separate property, indirect and direct contribution is taken into account
in ascertaining a spouse’ share in that property. In Karanja V. Karanja [1976] KLR
307,
the court held that when property is purchased jointly by both spouses and
registered in the name of the husband with the wife’s approval, a resulting
trust can be inferred in her favour. In this case the parties acquired several
properties during the course of the marriage. The property was registered in
the name of the husband. One property was acquired from money supplied by the
wife while the other properties were acquired with her direct or indirect
contribution. The court considered whether customary law would operate to
disqualify any imputation of trust in favour of a married woman, especially one
in salaried employment. It was held that the absence of an agreement or
intention that the contributing spouse share beneficially in the property does
not exclude the imputation of such an intention. This will depend on the
law of trust, which will not distinguish between direct and indirect
contribution. The court awarded one-third beneficial interest in the properties
to the wife.
In
the case of Peter Mburu Echaria V
Priscilla Njeri Echaria (2007) eKLR, the court held that indirect and
direct contribution should be taken into consideration in ascertaining a
spouse’ beneficial interest in the property that is separately owned.
Therefore, a spouse has the right to sue for a declaration of his or her
beneficial interest in the property.
A
spouse has a right to maintenance. Section 77
(1) of the Marriage Act provides that the court may order a person to
pay maintenance to a spouse or a former spouse:-
1. if
the person has refused or neglected to provide for the spouse or former spouse
as required by the Act;
2. if
the person has deserted the other spouse or former spouse, for as long as the
desertion continues;
3. during
the course of any matrimonial proceedings;
4. when
granting or after granting a decree of separation or divorce.
Through
section 78 of the Act an order for maintenance lapses where the person being
maintained is subsequently able to support himself or herself. Also, the order
shall lapse upon the re-marriage of the beneficiary of the order.
CONCLUSION
Cohabitation
for seven years can give rise to presumption of marriage depending on the
circumstances of the case in question. If presumption of marriage is
established a party is supposed to apply to court for declaration of
presumption of marriage. Where presumption of marriage is upheld the parties
have rights and responsibilities as though they were married under the Marriage
Act.
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