Marriage should not be the sole criteria for protecting vulnerable parties in relationships which involve the intermingling of finances.

Actuality of Cohabitation

Hesbon Matoke
Jul 20, 2017 · 5 min read

Marriage is an institution which was established by God and no man has powers to change whatever was set. It’s only the religious leaders who have the authority to intervene and handle any marriage matters because they are God’s servant. It follows that no man can interfere or should interfere with marriage on grounds that the marriage partners vowed to be together for better and for worse. It’s only God’s Servants or religious leaders who can intervene in such a domestic or private affairs in case of any difficulty but not further.

In the modern society, the above perception, regardless of the sanctity of marriage, has to be interfered with in order for marriages to benefit from long lasting effect. With the changing world, people mindless of the guiding principles of marriage and religious men who we believe should be at the forefront in so far as breathing life into the marriages is concerned, have literally failed either because they are acting so mechanically in handling lethal shoots of marriage. That’s why I believe in rationality to accommodate what the society in its right senses expects from me.

This piece covers cohabitation which has been in the pipeline for time immemorial. Cohabitation touches the nerve center of Kenya’s cultural, societal, tradition, and religious norms. It is at the center of who Kenyans are. In essence, I am challenging to reflect on the aspects of cultural believes, psychology that seems to contradict edicts of bellicose modernity and waves of globalization

I cannot dispute the fact that some cultures and tradition of some societies can be cruel, unreasonable, unbecoming, and unacceptable a good example being child sacrifice, female genital mutilation, castration, killing of twins, force circumcision and inheritance that are lopsided against the usual victims- the women.

The argument that the law should be in place to counter some of our cherished yet cruel traditions are timely and should be supported.

THE LAW ON COHABITATION

Cohabitation refers to a situation or relationship of a man and a woman who live together ostensibly as a man and a wife without going through a legal ceremony of marriage. The Marriage Act 2014, defines cohabiting as living in an arrangement in which an unmarried couple lives together in a long-term relationship that resembles marriage.

There is no law regulating cohabiting unions in Kenya. The Marriage Act 2014 itself does not specially and specifically recognize Cohabiting unions as a form of marriage. The other recognized unions are well known to you and surprisingly, you may well be versed to the very detail than I do here. It’s not a surreal but my focus here today is cohabitation.

Validating cohabitation

I mentioned earlier that our Marriage Act does not expressly recognize cohabitation. However, one may find sure remedies outside the Marriage Act. Cohabitation union may be legitimized by applying the common law principle of presumption of marriage. Remember common law is a source of law in Kenya as enshrined under section 3(1) of the Judicature Act. For one to rely on this presumption one must simply show prolonged cohabitation and the general public must hold the purported couple to be married without further proof. It is to be noted here that the question of how prolonged cohabitation is, is a question to be determined on a case to case basis.

To your dismay, succession as it is now and today, doesn’t entertain parties to cohabitation to benefit from it. Its only issues (Children) to cohabitation who can have their interest considered when a succession matter arises. If you enter into a cohabitation arrangement believing that the same will at one point turn into a business fortune, the fierce wheels of the Kenyan Succession law and Marriage Act will betray you ruthlessly. I think, you may rescue yourself from such a betrayal, if you are able to show that while in the cohabitation arrangement, you became a dependant but not a pest. Be sure, it will not be a walk in the park especially if the objector Cohabitee hires me to object to a succession matter involving cohabitees.

Status quo of cohabitation on Kenyan soil

In practice majority of Kenyans are cohabiting despite the fact that others claim it to be against God’s law.

People choose to cohabit not precisely to avoid legal responsibilities, but if you look at the context of a society where gender equality means that men and women generally approach cohabitation from unequal social positions with equal levels of bargaining power, gender inequality and patriarchy result in women lacking the choice freely and equally to set terms of their relationship. Furthermore, the weak and vulnerable members of the society need protection from the unfair exploitation by others. Even as Kenya’s society gradually becomes more equal in terms of gender, some individuals (male or female) will still lack equal bargaining powers and therefore be vulnerable to unfair treatment in the context of cohabitation.

Cohabitation vis a vis marriage

Cohabitation will not undermine marriage on grounds that the rate of cohabiting is exceedingly increasing day by day and therefore providing some legal intervention to cohabitation is essentially responding to a situation which already exists. Legal intervention for cohabitant needs not to make the results of cohabitation equivalent to marriage, so it is entirely possible to protect cohabitants while ensuring that marriage will continue to have a special status in society. Furthermore, marriage has not been undermined by legal reforms which protect children born outside marriage. I am of the view that marriage should not be the sole criteria for protecting vulnerable parties in relationships which involve the intermingling of finances.

Despite differing cultural attitudes and religious disapproval, cohabitation is present in all regions of Kenya. Even if there is cultural or religious disapproval of the practice, this does not justify denying recognition and protection to the significant numbers of people who live in this type of family arrangement. The recognition of cohabiting relationships will in no way affect the choice couples can make to marry according to their religious beliefs; therefore the two options are in effect mutually exclusive.

If religious leaders are concerned that the number of people marrying may be reduced, the logical recommendation, I would employ would be for churches to strengthen their teachings about the importance of marriage to their congregations rather than blocking alternatives.

Recognizing cohabitation in Kenya is a good idea on grounds that our women will be recognized and their positions taken account of. The courts would treat women fairly by recognizing their position in the society. Also, other family members would treat women with more respect and this would enhance their position in the community within their culture.

On balance am of the view that since policy consideration and common sense point to the need to provide legal protection which of course calls for legal intervention for cohabitation to protect vulnerable party from unfair exploitation. The law on cohabitation is a good law; we only need to improve its degree of legal protection in future. But first, let’s have it on record.

Byline: Hesbon Matoke Nyagaka LLB(Hons)UPU, Jobless Law Graduate

)
Welcome to a place where words matter. On Medium, smart voices and original ideas take center stage - with no ads in sight. Watch
Follow all the topics you care about, and we’ll deliver the best stories for you to your homepage and inbox. Explore
Get unlimited access to the best stories on Medium — and support writers while you’re at it. Just $5/month. Upgrade