Let's Just Live Together

Courtesy of Family Institute

Despite what you think, come-we-stay relationships are here to stay. Getting married is something that most people fantasize about from a young age. It is very common to see children playing mock weddings. Moreover, books also talk about falling in love with a prince or princess, having a wedding, and riding off into the sunset. Adulting and the current economy have unfortunately snatched away the dream from most people. The "let’s just live together" situation is one that most couples now prefer, blatantly avoiding an official wedding. Most people enter into come-and-stay relationships in the hope of one day being able to afford a lavish wedding. For others, it is just a matter of wanting to find out whether the marriage will be suitable for them and their partner. Commonly, it is the hope that kills. In fact, research points to cohabitation before marriage as the leading cause of divorce.

A factor that makes come-we-stay relationships even more enticing is the fact that divorce is nonexistent. When the relationship is over, the parties can go their separate ways without having to go through any unpleasant processes. Historically, cohabitation has been shunned, but times are changing. Apart from cohabitation being considered immoral, it is seen as a factor that degrades the marriage institution. Perhaps this is why previous generations frowned upon cohabitation. It is also essential to note that research shows that couples that cohabit prior to marriage are likely to have a less happy marriage. 

Cohabitation relationships can be attributed to the difficult economic times that have reached global proportions. Not many people can afford the grand weddings they see on lifestyle television shows. Even the internet is loaded with tips on how to move in together, what boundaries to set during cohabitation, and how to ensure that cohabitation lasts a long time. With these tips, people are assured that their cohabitation will have a happy-ever-after ending. For some people, marriage is just a superfluous formality. In the Supreme Court of Kenya at Nairobi, the court declared that a come-we-stay relationship is not and cannot be a marriage unless under very exceptional circumstances. 

Consequently, the legislation under which one can gain beneficial interests after divorce will not apply to cohabitating couples. The court recognized that as times are changing, it is common to find people choosing to cohabit. Such a relationship should remain independent of marriage and is referred to as an "adult interdependent relationship." This prevents the interference of marital status, and only those who undergo the required matrimonial procedures will be considered a married couple. The onus, therefore, lies on the couple that would like to get the legal benefits of marriage to secure their marriage certificate.

The decision came shortly after the Milimani Law Courts' high court ruled that seven years of cohabitation could be considered marriage. It is clear that this part of the law needs to be clarified. What are the special circumstances that allow cohabitation to be considered marriage, according to the Supreme Court? While it is not the duty of the courts to interfere in personal relationships, could the under-regulation of cohabitation be potentially harmful?

While the decision may be seen as advantageous, it may be disadvantageous for those who stay in cohabitation unions with the hope that they will get married. In my view, the National Assembly and the Senate need to formulate laws regulating come-we-stay relationships.

After considering the implications of cohabitation, people in such relationships must decide whether they want to stay in the same relationship. With marriage in decline and cohabitation on the rise, the courts need to ensure that the laws surrounding cohabitation are well-regulated to avoid confusion. It is my recommendation that the laws of Kenya recognize cohabitation agreements. The cohabitation agreement should clearly state issues having to do with finances during and after the cohabitation. The agreement will ensure the parties secure their financial assets and prevent future disagreements. In Australia, a cohabitation agreement is a binding financial agreement regulated under the Family Law Act (1975). The Australian Family Law Act allows for the formalization of binding financial agreements during a marriage and for de facto marriages. Perhaps this is a leaf that Kenya can borrow. 

As is the case currently, a cohabitee cannot claim the right to any property acquired jointly or separately during the cohabitation. It is time for those in cohabitation relationships to consider whether their needs will be met within the current regulations.

Winnie Wahome

Associate Editor at UNLJ