Supreme Court Rules Cohabitation Alone Does Not Make a Marriage

The Supreme Court of Kenya (SCORK) has ruled that long-term cohabitation, regardless of its duration or social appearance, does not automatically constitute a marriage in the absence of a clear intention to wed.

According to a decision delivered by MNK v POM Initiative for Strategic Litigation in Africa (ISLA), the Supreme Court of Kenya delivered a brutally clear message that the law will no longer convert companionship into matrimony simply through sympathy or assumption

“The Supreme Court of Kenya delivered a brutally clear message: cohabitation is not marriage, and courts will not impose marriage where there was never any intention to marry,” Court report stated.

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Intention as a Foundation

The ruling further stated that intention is not decorative; it is foundational,” meaning that the presumption of marriage should never arise if there was no shared goal to contract a marriage.

“Marriage is a voluntary union. Intention is not decorative; it is foundational. Long cohabitation, shared bills, children, public appearance as a couple – none of these, on their own, can override clear evidence that the parties never intended to marry,” the report stated.

The Court openly acknowledged a social reality many avoid saying out loud; some couples deliberately choose long-term, interdependent relationships outside marriage. Some are divorced. Some are widowed. Some simply do not believe in marriage.

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Presumption of Marriage

This ruling will now limit the “presumption doctrine where several factors that were previously seen as indicators of marriage are no longer sufficient on their own to prove a legal union.

“If there was no intention to marry, even 20, 30, or 50 years under one roof will not entitle you to claim divorce, spousal maintenance, or the automatic fruits of marriage. You cannot wake up at separation and retroactively declare a marriage that never existed in intention,” the Court ruled.

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Photo of Marriage Certificate for illustration purposes. PHOTO/S