For a very long time, marriage has been endorsed as a foundational unit of society. However, in modern times, many people have shied away from marriage as proof of their love and commitment to each other. Instead, they have embraced cohabitation over ceremonial formalities. Challenges arise when these relationships crumble, and the property acquired jointly during cohabitation becomes subject to contention, as there is no legal framework governing the division of property obtained during cohabitation.
Recently, in the case of MWK v JKK & another [2025] KEHC 16270 (KLR), the court acknowledged the complexities of dividing jointly owned assets during long-term cohabitation, as, unlike in marriages where the Matrimonial Property Act guides property division, there is no legal framework governing disputes arising from the division of jointly purchased assets by cohabiting partners.
The brief facts were that the parties had an intimate relationship spanning 27 years and bore four children together. The petitioner claimed they lived and presented themselves as husband and wife, consequently acquiring property jointly. When the relationship broke down, a dispute arose over dividing the property acquired during this period. The petitioner argued they were married under Kikuyu customary law but could not provide a marriage certificate as required by section 55 of the Marriage Act, which mandates registration of all marriages. The first respondent insisted they were merely friends from 1997 to 2011 and that he was married to the second respondent.
Based on the evidence, the court concluded that the parties had indeed been in an intimate relationship. Since both proved contributions to the property’s acquisition, the court awarded them equal shares on a 50:50 basis. Notably, it refrained from presuming a marriage, given the respondent’s insistence that they were only friends.
In its decision, the court recognized that relationships involve sacrifices and contributions that cannot always be quantified monetarily. It emphasized that monetary contributions should not be the sole basis for property division; other indirect forms of contribution in such settings must also be considered.
The court’s judgement emphasizes the necessity of the law to evolve with modern trends rather than remaining confined to tradition, which no longer aligns with the current evolving nature of society, which directly influences relationship dynamics. By extending proprietary protection where a narrow and strict procedural interpretation of the law would have denied it, the court affirmed that justice should not be impugned simply because mere formalities have not been adhered to and that the law must reflect practical realities and substantive justice.
The bottom line: Parties must prove their contribution..
