Why you may need to obtain a marriage certificate or an agreement to secure the property you have acquired in the subsistence of your marriage or cohabitation.
It is worth noting that relationships whether under marriage or cohabitation have, without question, their fair share of troubles. Often, the latter has suffered brutal fate when matters division of properties arises. Thus, the paper tries to explain the legal implications of properties acquired in the subsistence of the two relationships in the Kenyan context and how the same can be divided.
When adults enter into a relationship, tellingly the expectation usually is that such relationship will last forever and perhaps parties will live happily ever after. If all goes well some get married. Others wane off before they start while others stay unmarried but remain in a union resembling marriage-cohabitation. One striking thing in these relationships, however, is property may be acquired in their subsistence. Thus, the question what happens to property acquired when such relationships come to an end? How are property acquired in such relationships divided amongst or between parties constituting such arrangements?
The Constitution, The Marriage Act, Matrimonial Property Act and case law will shape the discourse of this paper.
To start off, the Constitution of Kenya 2010 under article 45(2) and (3) provides in brief that every adult has the right to marry a person of the opposite sex, based on the free consent of the parties and that Parties to a marriage are entitled to equal rights at the time of the marriage, during the marriage and at the dissolution of the marriage.
In order to operationalize the above Constitutional edicts Parliament pssed the Matrimonial Property Act, 2013 and Marriage Act, 2014. In brief, the Matrimonial Property Act was enacted to provide for the rights and responsibilities of spouses in relation to matrimonial property and for connected purposes whereas the Marriage Act was passed to amend and consolidate the various laws relating to marriage and divorce and for connected purposes.
At this point, it is worth noting that the Law as framed, starting with the Constitution, was curved to protect the rights of the parties to a marriage during its subsistence and its dissolution. Section 3 of the Marriage Act defines marriage to mean the voluntary union of a man and a woman whether in a monogamous or polygamous union and registered in accordance with this Act. Thus, for a union to qualify as a marriage in the Kenyan context it must be celebrated between a man and a woman and significantly, it must be registered regardless of whether it has been celebrated under, Hindu, Christianity, Customary, Islamic or Civil system as per the Legal Notice No. 5346.
When parties to a marriage divorce, or where marriage is otherwise dissolved, the division of property, acquired either before or during the marriage, will be distributed in accordance with the Matrimonial Property Act which Act provides that such property will be divided either in terms of contribution made by each party or through an agreement entered between parties on how matrimonial property will be shared.
By contribution Matrimonial Property of 2013 provides that it means monetary and non-monetary contribution. Non monetary includes: domestic work and management of the matrimonial home; child care; companionship; management of family business or property; and farm work.
Taking stock of the above it is worthwhile stating that per Matrimonial Property Act, a person who professes the Islamic faith may be governed by Islamic law in all matters relating to matrimonial property.
The second limb of this paper and perhaps troubling is how does property acquired in relationships resembling marriage divided. Section 2 of the Marriage Act defines the term cohabit to mean living in an arrangement in which an unmarried couple lives together in a long-term relationship that resembles a marriage. Until recently, such relationships existed and gained the court’s recognition as ones constituting marriage. In Hortensiah Wanjiku Yawe v Public Trustee CA Civil Appeal No.13 of 1976 (UR) the Court of Appeal for East Africa held that a long period of cohabitation as man and wife may give rise to a presumption of marriage in favour of the party asserting it. Mustafa JA., held as follows:
I find nothing in the Restatement of African Law to suggest that Kikuyu customary law is opposed to the concept of presumption of marriage arising out of long cohabitation. In my view, all marriages in whatever form they take, civil or customary or religious, are basically similar, with the usual attributes and incidents attaching to them. I do not see why the concept of presumption of marriage in favour of the appellant in this case, should not apply just because she was married according to Kikuyu customary law. It is a concept that is beneficial to the institution of marriage to the status of the parties involved and to the issue of their union, and in my view, is applicable to all marriages, however celebrated. The evidence concerning cohabitation was adduced at the hearing and formed part of the issue concerning the fact of marriage…
Elsewhere, in Mary Wanjiku Githatu v Esther Wanjiru Kiarie  eKLR, Bosire JA., summarized the position thus:
The existence or otherwise of a marriage is a question of fact. Likewise, whether a marriage can be presumed is a question of fact. It is not dependent on any system of law except where by reason of a written law it is excluded. For instance, a marriage cannot be presumed in favour of any party in a relationship in which one of them is married under statute. However, in circumstances where parties do not lack capacity to marry, a marriage may be presumed if the facts and circumstances show the parties by a long cohabitation or other circumstances evinced an intention of living together as husband and wife.
One thing that has changed, however, is such relationships exist and grow but what is not certain is how the courts will characterize them following the Attorney General’s notice no. 5346 in 2017 which notice required all marriages to be registered commencing 1st August 2017.
Against this backdrop, it is safe to say that acquiring property in arrangements that resembles marriage may very well be a recipe to lose lifetime investment especially after putting loads of hard work towards property acquisition. Such relationships are not governed under the law. In most of these relationships parties are usually clouded and preoccupied with love and may lose on the details yet in all these people come in different shapes and sizes and you may never know who you are dealing with.
For that reason, in order to avert property loss, you may need to enter into an agreement with your partner to establish how you will own, distribute and/or share the property you acquire or have acquired during cohabitation. By this you will have a contract to enforce should the other party renege on their obligation.
At this point and in line with the provision under article 40 of the Constitution it may be good for Parliament to enact a law governing the division of property acquired during cohabitation by way of contribution as espoused under the Matrimonial Property Act to save Kenyans from losing their property to preying vultures.