Come we stay unions have a long history in our society and the world over. Despite the fact that these unions have faced religious condemnation, they appear to be now very prevalent and more so, among young boys and girls. The state of affairs is even emerging to be “the acceptable” norm. Majority of the young Kenyans are now “married” in that manner and the situation can no longer be ignored or assumed. Further, people who may not have means to carry out traditional or civil marriages have also taken advantage of this state of affairs to “get married”.
Come we stay unions which have been widely described as a temporary state of affairs pending marriage are actually considered by the parties to the unions and the society in general as “marriage” pending the carrying out of the marriage rites/ceremony. It is therefore not shocking to find that these rites are sometimes carried out even after the death of the couple or one party of the union, if only to establish that there was in fact a marriage. Others drag on and formalization of the marriage is only carried out to pave way for children of the couple to get an official marriage.
In many Kenyan traditions, a couple that has not officiated its marriage cannot negotiate, receive or pay dowry for marriage of their children. Many are the situations when children’s weddings have been postponed to allow the parents to first officiate their marriage. This is a situation that parents should avoid by engaging in formal marriages on the outset or formalizing their come we stays before it is too late.
No statutory provision recognizes come we stay unions in Kenya.
At this juncture, it is important to note that a marriage may be recognized under a presumption of law. A man and a woman may cohabit and hold themselves as a husband and wife. This scenario can raise the presumption that they are legally married. The conduct of the parties shows that they are married and the burden of proving that there is no marriage lies on the person alleging the same.
It is therefore necessary to consider what encompasses the presumption of marriage. A little history will go a long way into shedding some light on this issue of the presumption of marriage.
In Kenya, the general position of the law is that Kenya is governed by various regimes of Law as set out in The Judicature Act – Cap 8 – Laws of Kenya which sets out the Jurisdiction of the High Court, the Court of Appeal and all Subordinate Courts. Section 3 thereof defines the bodies of Law applicable in our Court as follows:-
- The Constitution of Kenya - which is the Supreme Law
- All Written Laws/ Statutes/ Acts of Parliament to include Acts of Parliament of U.K. cited in Part I of the Schedule as modified in accordance with Part II
- Common Law – under which the Presumption of Marriage falls
- Doctrines of Equity
- Statutes of General Application in force in England on 12th August 1897
- Procedure and Practice observed in the Courts of Justice in England as at 12th August 1897
- African Customary Law where parties are subject to it or affected by it.
Case Studies
In the case of KISITO CHARLES MACHANI vs ROSEMARY MORAA, HCCC MISC. NO. 364 OF 1981 NAIROBI, which case is constantly referred to in many current judgements, the plaintiff sought various orders; inter alia, a declaration that the defendant is not the wife of the plaintiff. The defendant filed a defense in which she stated that she was the plaintiff’s wife according to Kisii Customary Law and/or by virtue of the common law presumption of a valid marriage following a long period of cohabitation as husband and wife and acceptance by the community as such, stated that the matrimonial home was at Karen College but that the defendant and the plaintiff lived as husband and wife there and occasionally spent time in a house at Woodley Estate.The plaintiff when he gave his evidence was very evasive about his relationship with the defendant. However, in his evidence he admitted that during their association 3 children were born and in various portions of the evidence he admitted that it was very likely that he was the father of all 3 children. It was clearly the plaintiff’s case that the defendant was nothing more than a friend to him and there was no real association or living together at all and no association before the families. The brother of the plaintiff testified that no dowry had been paid by the plaintiff and further stated that the family of the plaintiff used to take the defendant as the wife of the plaintiff.
Further it was accepted by the defendant that no formal marriage ceremony of any nature whether by law or custom or in church took place at any time. The defendant’s case was that many couples in Nairobi start living together with the knowledge of the families as man and wife and are treated as such by friends and by the families.
The court stated that it had no hesitation in finding that whilst none of the formal ceremonies which would normally be expected to be performed in a Kisii Customary Marriage were in fact performed, nevertheless the intention in the relationship between the plaintiff and the defendant was to establish the relationship of man and wife and that both families knew so and accepted so.
In HIGH COURT CIVIL CASE NO. 1460 OF 1977, NGARI VS GETANGI AND OTHERS, Muli J. as he then was, found the following on the facts before him which related to a Kikuyu Customary Marriage:-
"From evidence as a whole and the circumstances surrounding the relationship or association between the deceased and Juliana there was a marriage association which was impeded from reaching maturity by violent disagreements and certain customary formalities including slaughtering of "ngurario". This association remained for a long period for the court to reasonably presume a valid marriage which I hereby presume to have existed."Muli J. presumed the marriage to have existed despite the fact that there was no doubt that no marriage ceremony had ever been properly performed. What Muli J. looked at was the circumstances surrounding the relationship between the parties and he clearly found that the association was that of husband and wife.
The greatest difficulty in the said case of Charles Machani vs Rosemary Moraa, was that the defendant during the association between the parties herein, had been a party to a marriage with a gentleman from Zambia. The Court was of the opinion that during the period of cohabitation of the plaintiff and the defendant, from which the court was invited to presume a customary marriage, it was true to say that there was a valid and subsisting marriage between the defendant and one Mr. Vermoor. The association between the plaintiff and the defendant was therefore adulterous and the court was concerned that throughout this case it would be difficult in those circumstances to presume that the plaintiff was entering the association with the defendant with a view to marriage.
The court relied on the case of Chesire vs Chesire, Platt, J. where the Learned Judge stated on the authority of Hill vs Hill (1959) AER 281, that a presumption of valid marriage can still be made even though the association starts in adultery. Further the court was of the view that from the circumstances of the case and on the basis of the evidence given by the defendant, that it was quite clear that the basis upon which the plaintiff and the defendant started living together was that they wished to be accepted as man and wife by everybody around in spite of the obvious problem caused by the earlier marriage.
The Court finally held that in consideration of all the circumstances, on the authority of Yawe v Public Trustee Misc. Case No. 16 of 1973, on the basis of the decision of Muli J. in Ngari vs Getangi and Others and on the basis of Hill and Hill as quoted by Platt J. in Chesire vs Chesire, the court could presume that a marriage did exist between the plaintiff and the defendant. Further the court held that there was nothing in the case of the petitioner which was sufficiently credit worthy to assist the court in finding that the presumption had been rebutted and the court therefore presumed that a marriage existed between the plaintiff and the defendant on a customary basis.
In R vs Fita s/o Mihayo, the accused cohabited with a lady for between 4 – 8 months. The accused found the lady performing a sexual act with another man and promptly killed the man. In his defense, on a charge of murder, the accused claimed that he was provoked. The Court then had to consider whether the aforementioned period of cohabitation could be presumed as marriage. The accused relied on customary law, which provides that a man can take a woman as a wife and cohabit with her even before payment of dowry. If the woman then involves herself with another man; that would amount to provocation. The court therefore held that the 4-8 months cohabitation constituted marriage and the charge against the accused was reduced to manslaughter.
From the foretasted material, the question that quickly comes to mind is: What really is the difference between come we stay and cohabitation which gives rise to the presumption of marriage? Many scholars are of the opinion that come we stay is not cohabitation owing to the temporary state of affairs associated with the come we stay unions. However, I am of the opinion it is a very thin line between what is considered a come we stay union and what is considered cohabitation. As earlier indicated there are persons who take advantage of this state of affairs to commence the come we stay union with the intention of permanence, the only limiting factor being the resources to conduct any marriage ceremony. At this point, I would just like to highlight the contents of an aforementioned paragraph herein extracted from the said case of Charles Machani vs Rosemary Moraa, to wit,
"The court stated that it had no hesitation in finding that whilst none of the formal ceremonies which would normally be expected to be performed in a Kisii Customary Marriage were in fact performed, nevertheless the intention in the relationship between the plaintiff and the defendant was to establish the relationship of man and wife and that both families knew so and accepted so."In the aforementioned case, the court presumed that there was a marriage between the parties therein.
In conclusion it is important to note that come we stay affairs have societies thinking and Legislators and Jurists the world over are seriously taking into account the prevailing trend of come we stay unions. Kenya is no exception. The Proposed Marriage Bill – 2007 – drafted by the Kenya Law Reform Commission defines “Marriage” in a much wider sense and further recognizes presumption of marriage arising from cohabitation. More particularly, the Marriage Bill proposes to provide for the said presumption in statute. As the law stands, the presumption of marriage is only recognized in Kenya by virtue of Common Law which is applicable in Kenya.
The Marriage Bill proposes at Section 3 to define “Marriage” as follows:-
"Marriage means the voluntary union of a man and a woman intended to last for their life time."Further the Marriage Bill proposes at Section 7 to provide for the “Presumption of Marriage”. The said section provides as follows:-
"Where it is proved that a man and woman having capacity to marry have lived together openly for at least two years in such circumstances as to have acquired the reputation of being husband and wife, there shall be a rebuttable presumption that they were duly married."From a legal stand point, I would advise all men and women planning to live together in union as man and wife to enter into formal marriage from the outset. Such action helps to avoid the pitfalls of come we stay marriages that could in some cases turn out to be very expensive to one or both partners or even the children born out of such a union. Furthermore, in this time and age when men and women are searching for formal employment and wealth creation alike, many are the times when either of the spouses in a marriage will be required to provide legal proof of marriage in order for them to carry out certain transactions.
