A Presumption of Marriage is NOT Marriage

I have been pondering whether to write about this or not. Given cohabitation has become quite common in Kenya, someone might find this article an interesting read. Can living together for a few years magically turn a situationship into a marriage? I am writing this because there are just too many people out here fighting over land, dowry, children, or tea sets, thinking they were legally married when in fact they were just legally… roommates with benefits and a bit of legal recognition. Kenyan law is a little less romantic and a lot more procedural, so we have to talk plainly about this thing called presumption of marriage.

Where did the idea of Presumption of Marriage come from

The legal concept of presumption of marriage was borrowed from English common law, like many other things in our system. The courts developed it over time, mostly to prevent unfairness when one partner in a long-term relationship tried to vanish with the assets or inheritance, leaving the other person stranded.

A well-cited Kenyan example is the case of Hortensiah Wanjiku Yaweh v Public Trustee (very examinable case for my LLB readers by the way) from 1976. The court said, look if two people have lived together long enough and everyone in the village, the church and the local butchery referred to them as husband and wife, then the court can presume they were married. It did not matter if they had no certificate or did not have a wedding with cake and matching outfits. The key was long cohabitation and public repute.

This idea was revisited in Joseph Gitau Githongo versus Victoria Mwihaki in 2014. The court admitted that sometimes, real life is messy. People live together, raise children, build homes and bury in-laws without ever formalising anything. Then one person dies or disappears and the remaining partner is left fighting for their place in the story. In such cases, courts may use the presumption of marriage to answer very specific questions, such as who gets what or whether the woman can claim a share of the estate.

The kicker here is, a presumption of marriage is not a marriage. Let me say that again because people love to gloss over it. A presumption is not the thing. It is just something that might help you argue your case.

A presumption does not make you married, it just helps prevent injustice

The current law on marriage in Kenya is very clear. The Marriage Act of 2014 gives us five types of marriages that the law actually recognises. Civil, Christian, Customary, Islamic and Hindu. That is it. Anything else is background noise. And Section 3 of the Act spells it out rather plainly, a marriage must be voluntary, between a man and a woman and registered according to the Act.

Here is where it gets interesting though, Section 2 of the Act defines cohabitation as a long-term romantic relationship between two unmarried people that looks like a marriage but is not one. So the law is not confused about what is going on, it knows you live together. It knows people refer to you as Mr. and Mrs. But it still says you are not married. Not unless you followed the rules and actually registered the union.

The presumption of marriage is not part of the everyday legal furniture. It only comes out when someone needs to prove something else. Like inheritance, or maintenance, or custody. You do not get presumed married just for the sake, the court will only bother with that presumption if there is a bigger legal question on the table.

Section 119 of the Evidence Act allows courts to presume the existence of any fact that is likely to have happened, based on common human behaviour. This is how the court can say, alright, the couple lived together for twenty years, had three children, owned property together and were introduced to the clan. It is likely they were in a relationship akin to marriage. The presumption is then used to resolve the main issue. Usually money…land…you name rhe issues.

What is the point of all this?

The presumption of marriage is not a free pass to call yourself married. It is a legal tool used sparingly, only when necessary, to prevent injustice. The court is is interested in whether that situation entitles you to claim maintenance, inheritance, or a slice of matrimonial property.

In practice, you will see this play out when someone dies and the partner left behind is locked out of the burial plans or the estate distribution. In such cases if there was no formal marriage, the court might step in and apply the presumption of marriage but it will not do so lightly. You will need to show evidence of long-term cohabitation, shared responsibilities, social recognition and mutual support.

Even then, the presumption will only apply to the specific issue at hand. It will not suddenly make you legally married for all purposes. You cannot use it to file for divorce or sue for adultery. It is strictly functional.

Take this away

If you want the full rights, recognition and legal protection of marriage in Kenya, then get married properly. Register it, have the ceremony and sign the papers. The courts will not do all that work for you just because you lived together for a decade and people called you Baba and Mama So and So. If life happened and things got messy and the person you called a partner for years is gone, either by death or ghosting, then yes, you might still have a case. The presumption of marriage might just give you a foothold in court but only if you are willing to prove it and only if it is relevant to the dispute.

Presumption of marriage is only there to sort out legal fallout when things fall apart. If you want the benefits of marriage, make it official.

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