A four-year ‘come-we-stay’ relationship does not automatically qualify as a legally recognised marriage in Kenya, a Nakuru court has ruled, dismissing a divorce petition filed by a Kenyan living in the United States.
The magistrate dismissed the petition on Tuesday, October 13, 2026, finding that the petitioner had failed to establish the existence of a legally recognised marriage between the parties.
According to the court, the absence of a marriage certificate and insufficient evidence to presume a marriage meant there was no legally established union to dissolve through divorce proceedings.
In the ruling, the magistrate observed that the four-year period of cohabitation was insufficient, based on the evidence presented, to justify presuming that a marriage existed.
“I find a period of four years not that long and given the evidence adduced by the petitioner herein, I find no quality in the short period that the parties herein cohabited to make me presume a marriage, even though such a presumption shall still serve no purpose herein,” the magistrate ruled.
The decision highlights the legal uncertainty that can arise when couples live together for years without formalising their unions.
What Kenyan Law Says About ‘Come-We-Stay’ Marriages
Under the Marriage Act, 2014, Kenya recognises five types of marriages: Christian, civil, customary, Hindu and Islamic marriages.
Although the law defines cohabitation as a long-term relationship between unmarried people that resembles marriage, living together does not, by itself, automatically create a legally recognised marriage.
However, Kenyan courts can, in certain circumstances, presume a marriage where a couple has lived together and the evidence demonstrates that the relationship meets the applicable legal requirements.
In 2023, the Supreme Court set out strict conditions for establishing a presumed marriage in the absence of formal marriage documentation.
The court considered factors including prolonged cohabitation, the parties’ capacity to marry, their intention to marry and their consent to the union.
In that case, which involved a couple who had lived together for 25 years, the court upheld a 70:30 property-sharing arrangement.
The Supreme Court also held that evidence used to rebut a presumption of marriage must be strong, distinct, satisfactory and conclusive, while the applicable standard of proof remains the balance of probabilities.
The decision underscored that courts must examine the circumstances of each relationship rather than rely on cohabitation alone.
Can Unmarried Couples Claim Property?
The absence of a marriage certificate does not necessarily mean that a partner has no legal rights over property acquired during a relationship.
Courts may be called upon to determine property ownership, succession and other disputes following the breakdown of a relationship or the death of one partner.
In a separate ruling, the High Court observed that a marriage certificate is not the sole consideration when determining property rights arising from a relationship.
The court noted that contributions such as raising children, cooking, managing the household and supporting family life may be relevant when determining a partner’s entitlement to matrimonial property, depending on the circumstances and applicable law.
Long-term cohabitation, children born during the relationship and evidence of family life may also be considered when determining whether a presumed marriage exists.
The Nakuru ruling, however, reinforces the importance of establishing the legal basis of a marriage before seeking a divorce, as the court cannot dissolve a union that has not been legally established.
For couples living together without formalising their unions, the decisions serve as a reminder that the length of a relationship alone does not guarantee recognition as a marriage or automatic entitlement to jointly held property.
