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<blockquote><div class="quotetitle">Quote from <a class="profile-link highlight-moderator" href="https://lawguide.co.ke/understanding-law/legal-forum/profile/lawyer/">Lawyer</a> on July 8, 2025, 7:56 pm</div><div id="pl-6856" class="panel-layout" ><div id="pg-6856-0" class="panel-grid panel-no-style" ><div id="pgc-6856-0-0" class="panel-grid-cell" data-weight="1" ><div id="panel-6856-0-0-0" class="so-panel widget widget_sow-editor panel-first-child panel-last-child" data-index="0" data-style="{&quot;background_image_attachment&quot;:false,&quot;background_display&quot;:&quot;tile&quot;,&quot;background_image_size&quot;:&quot;full&quot;,&quot;background_image_opacity&quot;:&quot;100&quot;,&quot;border_thickness&quot;:&quot;1px&quot;}" ><div
			
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	In Kenya, the division of matrimonial property during separation or divorce can be a complex issue, particularly for couples in unregistered customary marriages or cohabitation relationships. The Matrimonial Property Act, 2013 provides a legal framework for determining property rights, but the absence of a formal marriage certificate often raises questions about eligibility to claim matrimonial property. This article explores the rights of couples in unregistered customary marriages or cohabitation arrangements under the Act, the legal principles involved, and the steps required to assert such claims.
The Matrimonial Property Act, 2013 defines matrimonial property as property acquired during the marriage and jointly owned by both spouses. This includes:
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The matrimonial home(s) where the couple resides.
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Household goods and effects in the matrimonial home.
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Any other immovable or movable property acquired jointly during the marriage.
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The Act applies to three types of marriages recognized under Kenyan law:
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Civil marriages conducted under the Marriage Act, 2014.
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Customary marriages conducted according to the customs of the couple's community.
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Religious marriages (e.g., Christian, Islamic, or Hindu marriages) recognized under the Marriage Act.
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However, the Act also extends certain protections to couples in long-term cohabitation relationships, which may be recognized as marriages under specific circumstances, even without a formal marriage certificate.
<h3 dir="ltr">Property Rights in Unregistered Customary Marriages</h3>
Customary marriages in Kenya are governed by the customs and traditions of the community to which the couple belongs. These marriages often involve traditional rites, such as the payment of dowry or specific ceremonies, but may not always be registered with the government. The Marriage Act, 2014 requires customary marriages to be registered within six months of the ceremony, but non-registration does not necessarily invalidate the marriage.
Under Section 2 of the Matrimonial Property Act, a marriage is presumed to exist if the parties have undergone customary rites sufficient to constitute a marriage under the relevant customs. For example, if a couple has completed dowry payments or other traditional requirements (e.g., "ruracio" in Kikuyu custom or "nyombo" in Luo custom), the marriage may be recognized as valid, even without a formal certificate.
<h4 dir="ltr">Claiming Matrimonial Property in Unregistered Customary Marriages</h4>
To claim matrimonial property in an unregistered customary marriage, the claimant must prove:
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Existence of the Marriage: The claimant must provide evidence that a customary marriage took place. This can include:
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Testimonies from witnesses who attended the customary ceremonies.
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Evidence of dowry payment or other traditional rites.
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Documentation, such as letters or agreements between families, acknowledging the marriage.
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Proof of cohabitation and public acknowledgment of the relationship as a marriage.
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Contribution to the Property: The Matrimonial Property Act emphasizes that property distribution is based on each spouse's contribution. Contribution can be:
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Monetary: Direct financial contributions, such as purchasing property or paying for its development.
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Non-Monetary: Contributions like childcare, household management, or supporting the spouse’s career.
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Joint Ownership: The claimant must demonstrate that the property was acquired during the marriage and intended for joint use or benefit.
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<h3 dir="ltr">Property Rights in Cohabitation Relationships</h3>
Cohabitation relationships, where couples live together without formalizing their union through marriage, present a unique challenge. The Matrimonial Property Act does not explicitly cover cohabitation, but Kenyan courts have increasingly recognized long-term cohabitation as giving rise to a presumption of marriage under Section 2 of the Marriage Act, 2014. This presumption applies if:
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The couple has cohabited for a significant period (typically two years or more).
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The couple is perceived by the community as husband and wife.
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The couple shares responsibilities, such as raising children or managing a household, akin to a marital relationship.
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<h4 dir="ltr">Establishing a Presumption of Marriage</h4>
To claim matrimonial property in a cohabitation relationship, the claimant must prove the presumption of marriage. Key evidence includes:
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Duration of Cohabitation: Courts often consider cohabitation of two years or more as sufficient to presume a marriage.
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Public Perception: Testimonies from neighbors, friends, or family members who recognized the couple as married.
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Joint Responsibilities: Evidence of shared financial or domestic responsibilities, such as joint bank accounts, shared property ownership, or raising children together.
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Intent: Proof that the couple intended to live as husband and wife, even without formalizing the union.
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Once the presumption of marriage is established, the cohabiting partner can claim matrimonial property under the same principles as a formally married spouse, with a focus on proving contribution to the acquisition or development of the property.
<h3 dir="ltr">Challenges in Claiming Matrimonial Property Without a Marriage Certificate</h3>
While the Matrimonial Property Act provides avenues for claiming property in unregistered customary marriages or cohabitation relationships, several challenges may arise:
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Proving the Existence of a Marriage: Without a marriage certificate, claimants must rely on oral or circumstantial evidence, which can be contested or difficult to substantiate.
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Disputes Over Contributions: Proving non-monetary contributions, such as household management, can be challenging, especially if records are lacking.
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Cultural Barriers: In some communities, women may face resistance when claiming property under customary law, as traditional norms may prioritize male ownership.
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Legal Costs: Pursuing a claim through the courts can be expensive and time-consuming, particularly if the other party disputes the claim.
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<h3 dir="ltr">Steps to Claim Matrimonial Property</h3>
To successfully claim matrimonial property without a formal marriage certificate, follow these steps:
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Gather Evidence: Collect documentation or witness testimonies to prove the existence of a customary marriage or cohabitation relationship. This may include photos, dowry records, or affidavits from family members or community leaders.
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Document Contributions: Compile evidence of your contributions to the property, such as bank statements, receipts, or proof of domestic responsibilities.
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Seek Legal Advice: Consult a lawyer specializing in family law to assess your case and guide you through the legal process.
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File a Claim: Submit your claim to a Kenyan court with jurisdiction over matrimonial property disputes, typically the High Court or a Magistrate’s Court.
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Mediation or Litigation: Attempt mediation to resolve the dispute amicably. If mediation fails, proceed to litigation, where the court will evaluate the evidence and make a ruling based on the Matrimonial Property Act.
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<h3 dir="ltr">Legal Protections and Considerations</h3>
The Matrimonial Property Act emphasizes equal rights for both spouses in a marriage, regardless of whether the marriage is formally registered. Section 7 of the Act provides that matrimonial property is divided based on the contribution of each spouse, ensuring fairness. Additionally, the Constitution of Kenya, 2010, under Article 45(3), guarantees equal rights for spouses during marriage and at its dissolution.
For cohabiting couples, the courts’ recognition of the presumption of marriage is a progressive step toward protecting vulnerable partners, particularly women, who may otherwise lose access to property they contributed to during the relationship.
<h3 dir="ltr">Conclusion</h3>
Couples in unregistered customary marriages or long-term cohabitation relationships in Kenya can claim matrimonial property under the Matrimonial Property Act, 2013, provided they can prove the existence of a marriage or presumption of marriage and their contributions to the property. While the absence of a formal marriage certificate poses challenges, Kenyan courts have demonstrated a willingness to uphold the rights of such couples based on evidence and equitable principles.
If you are navigating a matrimonial property dispute or need assistance with a claim, contact us at +254 716 808 104 or info@lawguide.co.ke for expert legal guidance tailored to your situation.
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