Why do so many couples today choose to live together without getting married? For some, it’s about finances; for others, convenience; and for many, it’s a way of “testing” the relationship. Whatever the reason, one word often comes up—cohabitation. But as much as it may appear like marriage, does living together automatically make you husband and wife in the eyes of the law?

Researchers Casper and Bianchi (2002) identified four types of cohabitation: as an alternative to marriage, a precursor to marriage, a trial marriage, or coresidential dating. These categories reveal that cohabitation can mean very different things to different people—ranging from temporary companionship to a lifelong partnership in everything but name. Yet, what happens when emotions blur into legal obligations, or when one partner claims rights that the law does not expressly grant?

In Kenya, this debate took centre stage in the landmark case of MNK v. POM [2023] eKLR, where the Supreme Court had to decide whether long-term cohabitation could amount to a legal marriage. The judgment not only settled years of uncertainty but also redefined the limits of what the law considers marriage.

What Is Cohabitation? A Holistic Definition

Cohabitation is more than two people sharing a home. Legally, it refers to two individuals—whether married to each other, married to other people, or unmarried—who live together in a relationship of some permanence. Unlike a registered marriage, it lacks the formalities or legal recognition provided under the Marriage Act, 2014, which recognizes five types of marriages: Christian, Civil, Customary, Hindu, and Islamic.

Does Cohabitation Automatically Create a Common Law Marriage?

Many people assume that long cohabitation naturally transforms into marriage, but the law requires more than shared rent and affection. The central question remains: can long cohabitation create a presumption of marriage, and under what circumstances?

Brief Facts of MNK v. POM [2023] eKLR

The case arose from a long-term relationship that began in 1986. POM claimed that during their time together, he and MNK pooled resources and bought property, which was registered solely in MNK’s name. He alleged that they jointly improved the property and operated a business from it until MNK evicted him in 2011. The asset, which POM considered their matrimonial home, generated an income of approximately Ksh. 258,100 per month.

MNK denied these claims, asserting that POM had no involvement in the purchase of the property and that she only allowed him to manage it as a friend. She further disclosed that she was already married under customary law to one KM, who died in 2011. After KM’s death, she alleged, POM began to harass her to force her into marriage.

High Court’s Decision

The High Court acknowledged that MNK and POM had cohabited for a long period but ruled that the presumption of marriage could not apply because MNK lacked the legal capacity to marry—she was already married to KM under customary law.

Court of Appeal’s Decision

The Court of Appeal overturned the High Court’s ruling. It found that the couple’s long-term cohabitation, shared responsibilities, and public conduct created a presumption of marriage. The court held that POM and MNK were indeed married by presumption and ordered that their jointly acquired assets be divided equally.

Supreme Court’s Analysis and Decision

Aggrieved by the appellate decision, MNK appealed to the Supreme Court. The Supreme Court took a different approach, emphasizing that the Court of Appeal had erred by failing to establish whether both parties had the legal capacity to marry.

The apex court held that since MNK was already married to another man at the time of her relationship with POM, she lacked the legal capacity to enter into another marriage. Consequently, the presumption of marriage could not arise. The court further observed that cohabitation alone, even if long-term, does not automatically amount to marriage.

The Court clarified that the matter was filed in 2011—before the enactment of the Marriage Act, 2014, and the Matrimonial Property Act, 2013. Therefore, these statutes could not be applied retrospectively. The law, it emphasized, is prospective, meaning it cannot apply to events that occurred before its enactment.

Elements Giving Rise to a Presumption of Marriage

The Supreme Court laid down eight essential elements that must be satisfied for a presumption of marriage to exist:

The couple must have cohabited for a considerable and consistent period.

Both individuals must be legally free and eligible to marry.

There must be clear indicators showing that the couple intended to enter into a marital relationship.

Both parties must have mutually consented to the idea of being married.

They must have represented themselves publicly as husband and wife.

The responsibility of proving that a marriage existed lies with the person making the claim.

Any evidence brought to challenge the existence of such a marriage must be strong, direct, and convincing.

The case must be proved on a balance of probabilities — meaning it should be more likely than not that the relationship met the criteria for a presumed marriage.

Matrimonial Property and Cohabitation

Section 6 of the Matrimonial Property Act, No. 49 of 2013 defines matrimonial property as the matrimonial home or homes, household goods and effects within those homes, and any other movable or immovable property jointly acquired during the marriage.

However, where a relationship is not legally recognized as marriage, these protections may not apply. In MNK v. POM, the Supreme Court stressed that property rights must flow from a valid marriage and that cohabitation alone does not confer such rights.

Lessons for Modern Cohabitees

The MNK v. POM [2023] eKLR decision reaffirmed that marriage is a voluntary, legally recognized union—not a social assumption. Courts cannot impose a marital status where essential ingredients like legal capacity, consent, or intent are missing.

For relationships formed after 2014, the Marriage Act and Matrimonial Property Act provide clearer guidance, but the principles remain:

Cohabitation does not equal marriage.

Property rights arise only from legally recognized unions.

Legal protections depend on compliance with statutory requirements.

Frequently Asked Questions

1. Does living together for many years make us married in Kenya?
No. Cohabitation, regardless of duration, does not automatically amount to marriage. The court examines the parties’ intention, capacity, and how they presented themselves publicly.

2. Can cohabiting partners share property if they separate?
Only if the relationship meets the threshold of a presumed marriage or if they can prove direct contribution to the property. Otherwise, matrimonial property laws do not apply.

3. How does the 2014 Marriage Act affect cohabiting couples?
It clarifies that only five types of marriages are legally recognized in Kenya. Cohabitation remains outside this framework, meaning couples must intentionally formalize their unions to enjoy full legal protection.