Cohabitation of four years insufficient for marriage presumption, magistrate rules

A Nakuru magistrate has dismissed a divorce petition by a US-based Kenyan, finding that a four-year come-we-stay relationship did not create a legally recognised marriage under Kenyan law.

A Nakuru court has ruled that living together for four years does not automatically create a legally recognised marriage in Kenya, dismissing a divorce petition filed by a Kenyan citizen based in the United States.

Senior Principal Magistrate Aloyce Ndege on Tuesday, 13 October 2026, threw out the case brought by the petitioner, identified in court records as BMT, against MWM. The magistrate directed that the parties continue as unmarried because their cohabitation did not constitute a union recognised under Kenyan law.

BMT filed the petition in May 2025 seeking dissolution of the relationship on grounds of cruelty. He told the court that the couple had cohabited as husband and wife for four years before the relationship broke down and they separated in 2024. No valid marriage certificate was produced. The matter proceeded without a defence, with the petitioner giving oral testimony.

The magistrate found the evidence insufficient to support a presumption of marriage. “I find a period of four years not that long and given the evidence adduced by the petitioner herein, I find no quality in the short period that the parties herein cohabited to make me presume a marriage, even though such a presumption shall still serve no purpose herein,” the magistrate ruled.

He further held that the petition was unnecessary because no marriage recognised by Kenyan law—Christian, Muslim, Hindu, customary or civil—existed between the parties. Only those forms of marriage can legally be dissolved.

The decision underscores a long-standing distinction in Kenyan family law between cohabitation and marriage. The Marriage Act, 2014, defines cohabitation in Section 2 as a situation in which an unmarried couple lives together in a long-term relationship that resembles a marriage. Section 6 of the Act recognises only five forms of marriage: Christian, civil, customary, Hindu and Islamic.

Courts may still consider a presumption of marriage in appropriate cases where no certificate exists. In its January 2023 decision in MNK v POM (Petition 9 of 2021), the Supreme Court set strict conditions that must be met. These include that the parties lived together for a long period, had the legal capacity to marry, intended to marry, consented to the union, and held themselves out to the outside world as husband and wife. The party alleging the presumption bears the burden of proof on a balance of probabilities. Evidence to rebut the presumption must be strong, distinct, satisfactory and conclusive.

The Supreme Court emphasised that presumption of marriage is the exception rather than the rule and should be applied sparingly. In that case, which involved a relationship of many years, the court declined to presume a marriage because one party lacked capacity, while still addressing property interests arising from the long cohabitation.

Even where a court declines to recognise a marriage, parties who have lived together may still pursue claims relating to property ownership, succession or contributions made during the relationship. Courts have previously examined the duration of cohabitation, children born of the relationship, contributions to family life and the circumstances of property acquisition when determining such disputes. A marriage certificate is not the sole factor considered in matrimonial property claims.

The Nakuru ruling does not change the legal position that mere cohabitation, even for several years, does not by itself create a dissolvable marriage. It does, however, reaffirm that couples in long-term relationships without formal registration retain avenues to seek relief on property and related matters where the evidence supports it.

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