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ANALYSIS: Are Kenyan couples who’ve lived together ‘more than 6 months’ married in law?

Kenya’s funnyman Eric Omondi claims he is married to his long-time fiancee Chantal Grazioli.

But there was no wedding. They had been together for more than six months, and that qualified as marriage, he said in October 2018.

“By the law of the government if you stay with a man for more than six months it’s gone, it’s done,” Omondi told Showbuzz, the entertainment section of the Sunday Nation. “It’s in the constitution. So, the kind of wedding I will do will be to solemnise our union. I am a married man.”

Omondi told Africa Check the law was on his side.

“That’s what the Kenyan law says,” he said. “If a man and a woman live together for more than six months they are considered husband and wife.”

But this time Omondi didn’t say he had the constitution’s support. That was, he told us, a joke.

His six-month claim was similar to a change to the country’s marriage laws proposed in 2012. An earlier proposal from 2007 suggested that couples who had openly lived together for two years should be considered married. Both proposals were dropped.

And the 2014 Marriage Act doesn’t support his claim. The law recognises five types of marriage: Christian, civil, customary (relating to any community in Kenya), Hindu and Islamic.

Common law to the rescue

Omondi’s claim to marriage, based on the length of time he and Grazioli have lived together, needs to be proved in a court of law, with evidence and witnesses.

“Presumption of marriage is not automatic. It requires evidence,” Josephine Mong’are, the chairperson of the Kenyan chapter of Federation of Women Lawyers, told Africa Check. “What you need to prove is that the rest of the world viewed you as married.”

All marriages have to be registered. Failure to register a marriage is illegal and can be punished by a fine of KSh5,000 (US$50) or community service or both, the law says. Also, unregistered marriages can be considered null and void.

“In the absence of a [marriage] certificate, you will be required to prove the existence of a marriage, by calling witnesses, by providing evidence of cohabitation and all that,” Mong’are said. “So, the presumption is you will provide the evidence to confirm that other people view you as a married couple, including your family, his family, or neighbours and friends.”

In 2015, Justice Alfred Mabeya clarified that a man claiming marriage to a woman he lived with couldn’t do so under the 2014 law.

“It would seem that marriage by long cohabitation is not recognised under that Act,” Mabeya wrote. “Does this, however, do away with those relationships where couples have lived together as man and wife for years even whose relationships have ended up with children? I do not think so.”

When looking at long cohabitation, known as common law marriage, courts look at whether there was a marriage of reputation.

“Where a marriage does not comply with the relevant formalities laid down by the Marriage Act or under customary law, it may be rescued by presumption of marriage by cohabitation,” Justice William Musyoka ruled in 2015.

No six-month standard

The couple must have lived together over a period of time and presented themselves as husband and wife to their close friends, relatives and acquaintances, the court said.

In July 2018, Justice David Majanja declared that a couple had been married because it had been proved “on the balance of probabilities that [the man] cohabited with [the woman], had children with her and that they recognised each other as husband and wife and represented themselves as such”.

Omondi did place a lot of weight on a man and woman making it past the six-month mark.

But whatever the press wrote about the six months idea, no legal text supported that short a time. And when the Marriage Act was signed in 2014, it was silent on the entire issue of presumption of marriage.

Carole Kimutai is the managing editor, digital at the Standard Group in Kenya. This analysis for Africa Check is part of the work produced during her time at Politifact, the US fact-checking organisation under the World Learning Media Exchange. Carole worked with Politifact’s Jon Greenberg.


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