According to a decision by the Supreme Court, cohabiting individuals who have no intention of getting married are not legally wedded unless they voluntarily do so.
After a protracted legal dispute between respondent Paul Ogari Mayaka and his ex-girlfriend appellant Mary Nyambura Kangara, also known as Mary Nyambura Paul, the court issued a decision.
The couple purchased a matrimonial residence in Dagoretti during their extended cohabitation (1986–2011), according to court records.
When they split up, Nyambura filed a court petition asking for an equal distribution of the marital assets; however, the request was denied since it was impossible to assume that the cohabitation that followed constituted a marriage.
Dissatisfied with the High Court’s ruling, the case was appealed to the Court of Appeal, which ruled that there was a presumption of marriage between the two parties and proceeded to divide the suit property in half, with a share going to each party.
Later, the case was taken to the Supreme Court, where the justices determined that because the appellant and respondent had never been married, Act No. 49 of 2013—which governs matrimonial property—did not apply to the case.
According to the act, ownership of marital property is divided between the spouses in the event of a divorce or other dissolution of the marriage based on each spouse’s contribution to its acquisition.
Part of the ruling said that “the Court also found that the presumption of marriage is the exception rather than the rule and that the situations in which a presumption of marriage can be upheld are restricted.”
The Court has determined that there are situations in which couples live without any intention of being married, that marriage is a choice union, and that courts cannot force “a marriage” upon those who are unwilling to enter into one.
The Court, however, found that the parties’ shared intention at the time they bought the subject property gave birth to a constructive trust between them.
The Court divided the suit property at a ratio of 70% to the appellant and 30% to the respondent because they both contributed to its acquisition, improvement, and upkeep.
A marriage partner must now demonstrate their contribution to the matrimonial property in order to establish their share upon divorce, the court further decided.
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