In a five-bench bench decision, the Supreme Court of Kenya in Petition No. 9 of 2021 enhanced the threshold of presumption of marriage for cohabiting couples. According to the decision, long cohabitation between a man and a woman with a reputation of husband and wife is not sufficient to presume a marriage.

In addition; the following conditions must be present:- legal right/capacity to marry, intention to marry and consent by both parties. The onus of proving the alleged marriage is on the party who alleges and there must be no cogent evidence to controvert the claim of marriage.

In the subject case, the Court found that the couple, albeit having cohabited for close to about 26 years with a repute of husband and wife, could not be presumed as having been in a marriage relationship since there was evidence that at the time they started living together and through the subsistence of the relationship, the woman was married to another man and therefore she had no legal capacity to contract another marriage.

The man had also been married to another wife and the current ‘wife’ was a second wife. The court thus found that a presumption of marriage could not apply as there was uncontroverted cogent evidence proving otherwise and the man had failed to prove his case to the required threshold

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