For many Kenyan couples, living together for years, raising children, acquiring property and publicly presenting themselves as husband and wife may feel no different from being formally married.
However, when such relationships break down, the absence of a marriage certificate can expose the couple to a complicated legal process, particularly when property, succession or other interests are involved.
Family lawyer Lynn Nganga says Kenyan law does not recognize “come-we-stay” as a distinct form of marriage, warning couples against assuming that living together for a certain period automatically gives them the legal status of spouses.
“There’s no law that recognizes a come-we-stay,” Nganga says.
Nganga, an advocate of the High Court of Kenya, says the Marriage Act, 2014 sets out the forms of marriage recognized in Kenya but does not provide for “come-we-stay” as a category.
This means a couple can live together for 10, 15 or even 20 years, have children, acquire property and be known publicly as husband and wife, yet still face the challenge of proving that a marriage existed when they separate.
No fixed period creates a marriage
One of the most common misconceptions is that living together for six months, one year or another specified period automatically creates a marriage.
Nganga dismisses the belief, saying there is no fixed period after which a couple automatically becomes legally married.
“People were saying six months qualifies for a marriage. No, that was just a suggestion in a Bill that never went through the second phase,” she says.
She advises couples who intend to be married to formalise and register their unions instead of relying on cohabitation.
The issue becomes particularly important for couples who have acquired land, houses, businesses or other assets together.
Courts can presume a marriage
Although “come-we-stay” is not a formal category of marriage, Nganga says courts can, in certain circumstances, presume that a marriage existed.
Such a claim requires evidence showing that the parties genuinely lived and presented themselves as husband and wife.
The evidence may include witnesses who knew the couple and observed their relationship over time.
These could be a chief, neighbour, relative, teacher or another person who can testify that the parties were treated as husband and wife.
Evidence from both families may also be important.
For example, a couple may have introduced each other to their families, attended family functions together or been acknowledged as spouses by relatives.
“Maybe a chief, a neighbor, a relative, a school teacher, someone who witnessed the two of you being husband and wife,” Nganga says.
Documents can also help establish how the parties regarded and presented their relationship.
Nganga cites school records, employment documents, insurance records, travel paperwork and next-of-kin information as examples of evidence that may become relevant.
Even an obituary could be significant in a succession dispute where a surviving partner's claim to being a spouse is contested.
Separation can become complicated
The legal difficulties often emerge when couples who have lived together for years decide to separate.
Nganga says children's matters can generally be handled independently because parents can approach the Children's Court without first proving that they were legally married.
“For children, you can always go to the Children's Court and you don't need to term yourself as husband and wife. It's just father and mother,” she says.
Property, however, presents a more difficult question.
A couple may have lived together for a decade, raised children and acquired land or houses, with some assets registered in only one partner's name.
When the relationship ends, the first legal hurdle may be proving that a marriage existed.
“If you’re going to the divorce court, you’ll be telling the court, ‘I have been cohabiting with this man, I have been cohabiting with this lady for over 10 years,’” Nganga says.
The first prayer would be for the court to recognize the relationship as a marriage through a presumption of marriage. If that succeeds, the party can then seek dissolution.
Evidence is crucial
Nganga warns that a person seeking recognition of a presumed marriage cannot rely solely on their word.
Witnesses and documentation can be critical in demonstrating how the relationship was conducted and perceived by the community and the two families.
Social media posts may also become part of the wider evidence where a couple consistently presented themselves publicly as husband and wife.
However, such posts do not automatically create a marriage.
The same applies to official records where one partner listed the other as a spouse or next of kin.
“The more evidence a person can provide showing that the relationship was consistently treated as a marriage, the stronger the case for a presumption of marriage may become,” the lawyer says.
Property disputes can be harder
The absence of a recognized marriage can have serious consequences when property acquired during the relationship is contested.
Nganga says family lawyers encounter cases where couples have lived together for years but property is registered solely in one partner's name.
Without a recognized marriage, a person seeking a share may have to pursue a different legal route rather than simply relying on the framework governing matrimonial property.
The claimant may have to establish an interest in the property through the Environment and Land Court.
This can make the case more difficult because the claim may focus heavily on financial contribution.
“Bank statements, loan statements,” can become important evidence when demonstrating contribution towards the acquisition or development of property, Nganga says.
She contrasts this with matrimonial property proceedings, where contribution can include both direct and indirect contributions.
In a marriage, contribution is not necessarily limited to money used to purchase an asset. It can also involve caring for children, managing the home and supporting a spouse while the other partner earns an income.
Nganga says these broader considerations can be difficult to rely on where the relationship has not first been recognized as a marriage.
Children do not automatically create marriage
Having children together also does not automatically change the legal status of a relationship.
A couple can have several children and still have to establish separately whether their relationship amounted to a marriage.
The existence of children may provide evidence about the duration and nature of the relationship, but it does not by itself create a marriage.
Parents, however, continue to have legal responsibilities towards their children regardless of whether they were formally married.
This means matters concerning custody, maintenance and parental responsibility can be addressed separately from a dispute over marital status or property.
Social media does not replace a certificate
The growing use of social media has added another dimension to disputes involving cohabiting couples.
Partners may routinely post photographs together, call each other husband and wife, attend family events together and publicly identify themselves as spouses.
Such conduct may become relevant when a court considers whether a marriage should be presumed, particularly when supported by other evidence.
But a Facebook or Instagram post alone cannot automatically establish a marriage.
The broader circumstances of the relationship remain important, including how the couple lived, how they presented themselves and whether there is evidence supporting their claim.
Nganga's advice to couples
Nganga's advice is that couples who intend to be married should formalize and register their unions rather than relying on years of cohabitation.
She says customary marriages can be registered after the relevant customary rites, while couples can also choose other legally recognized forms of marriage.
The issue is particularly important for couples acquiring property, taking loans, investing together, naming beneficiaries or making long-term financial arrangements.
For couples already separated, Nganga advises them not to assume that living together for many years automatically entitles either partner to a share of every asset acquired during the relationship.
The nature of the relationship, ownership documents, evidence of contribution and legal basis of the claim must be considered.
“The journey ahead will be longer and tougher as compared to someone who has a certificate,” she says.
Ultimately, “come-we-stay” may be widely used in everyday Kenyan language, but it should not be confused with a legally recognized category of marriage.
At the same time, the absence of a certificate does not necessarily end every legal argument that a marriage existed.
In appropriate circumstances, a court may presume a marriage where sufficient evidence is presented.
For couples who want their relationship to carry the legal consequences of marriage, Nganga's message is simple: formalize the union, register it and keep the documentation.
Otherwise, what appears to be a straight forward separation could become a lengthy legal battle over whether a marriage existed and who is entitled to property accumulated during the relationship.
