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A LETTER TO MY COHABITING FRIENDS

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Dear Cohabitant,

I don’t know how it happened or who moved into whose house or whether it was a clothe at a time until you finally realized you were practically living together and you were doing married people stuff. I don’t know for how long you’ve lived together or rather how long you’ve been married. You love each other, that is not in doubt. Everyone considers you as married. In fact the other day you went to an advocate to draft an affidavit for you so that you could be added to your spouse’s medical scheme.You probably have a joint account together.You go to church together, you attend all your functions together and sometimes you even represent each other when the other one is not available. Both your families consider you married. There was a probably a small traditional ceremony to celebrate your union, but that was it.

Maybe you have never considered registering your marriage. What is the point? You see it as just a piece of paper that does not affect how you feel towards each other.

Or maybe, you had considered it at first. You always wanted a grand wedding but weddings cost an arm and a leg and a few kids later it doesn’t matter anymore and it will not change a thing at this point, will it?

Initially even without registering a marriage during divorce and succession disputes the court worked with the notion of “presumption of marriage”. What does that mean? If you were able to prove you were married then that was good for you. You did that by answering the following questions.

  1. How long had you lived together as husband and wife?
  2. Did you have any children together?
  3. Did you acquire any property together?
  4. Are there people who can testify to your marriage? What do the neighbours say?
  5. None of you were in any other legally binding marriage.
Cohabitation was like another form of marriage. Kinda makes sense, right? The court would work on these assumptions because its not until May 2014 that the Marriage Act 2014 came into force providing that you could register your customary marriage. Further the Attorney General recently directed that as from 1st August, 2017 that all customary marriages had to be registered.
What this means is that the marriage certificate is the only evidence the court will consider when asking itself whether a couple is married. How does this affect you?
 
First this affects matrimonial property. In the event of a divorce, the property that you two acquired together will be considered to be solely owned by the person whose name under which it is registered. We live in a society where we regard the men as the heads of the family and often times women will quit their jobs to take care of their family as the man provides. The general assumption is that whatever money he makes, or property he buys will be “theirs” and vice versa. This means that many times property is registered under the name of one spouse, but when conflict arises the court has been able to judge the contribution made by the other spouse and rightfully divide the property between the two. With the AG’s directive, in the event there is matrimonial property dispute,  you will only be safe if you had registered your marriage or if you can prove how you contributed towards the acquisition of property.
Secondly this affects the distribution of property when one of the spouses dies. As stated the courts would regard as married those who could prove so in the instance they did not register their marriage. I find it quite unfair that now a widow or widower who did not register their marriage might have no rights to their spouse’s share of the property.
My advice to you is this:  Register your marriage. For your customary marriage, you only need to file a notice with the registrar, obtain an acknowledgement certificate from the registrar and wait for the registrar to issue you with the certificate of customary marriage. This should cost you a little less than Kshs. 4,000/=. If you were married before the Marriage Act 2014 came into force you can just apply to the registrar for a certificate of customary marriage which should cost you just the same amount.
Alternatively you could conduct a civil wedding which should cost just about the same. Lastly you could ask your pastor to officiate a small/grand ceremony during which you will obtain a marriage certificate which again should cost just about the same. These processes in the absence of complications should be done in 3 weeks.
If you don’t get anything I need you to get this, cohabitation is no longer regarded as a form of marriage. So if you need the state to recognize you as a spouse you need to comply with the law.
Yours Truly,

Wangeci

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