Is the presumption of marriage still applicable?

In the absence of any amendments to the Act, the Act constitutes the law of Kenya in respect of and shall have universal application to all cases of intestate or testamentary succession in relation to the estate of deceased persons. Where there is a contradiction between the Act and any other law, in succession matters, the Act will prevail.

Section 3(5) of the Act provides that “notwithstanding the provisions of any other written law, a woman married under a system of law which permits polygamy is, where her husband has contracted a previous or subsequent monogamous marriage to another woman, nevertheless a wife for the purposes of this Act, and in particular sections 29 and 40, and her children are accordingly children within the meaning of this Act.”

This provision is in direct contradiction with sections 6 and 9 of the Marriage Act 2014 (the “Marriage Act“) which provides for the kind of marriages recognised in Kenya and does not include marriages by presumption or “common law marriages”. It requires that all marriages whether religious or customary must be registered to be valid. The Marriage Act also states that where one marries under statute, they cannot subsequently conduct a customary marriage.

Recently in MNK v POM (Petition 9 of 2021) [2023] the Supreme Court of Kenya considered the presumption of marriage in the context of divorce proceedings and the division of matrimonial property and concluded that no inferences about marital status should be drawn from living under the same roof and that the National Assembly ought to formulate and enact laws that deal with cohabitees in long term relationships, their rights and obligations.

However, the presumption of marriage is still applicable in relation to succession. The principles for determining presumption of marriage from prolonged cohabitation are stated in the famous case of Hortensiah Wanjiku Yawe vs. Public Trustee Civil Appeal No. 13 of 1976 the Court held that for the presumption of marriage to arise, some of the factors to be considered include: whether there were children fathered by the deceased, whether there was valuable property acquired jointly, and whether some form of marriage ceremony was performed. The cohabitation should be deemed to have crystallized into a marriage for the presumption to apply.