“Come we stay” a phrase used by Kenyans to refer to unmarried couples living together with no intention of marriage.
Couples cannot claim to be married depending on the months or years they have been living together until they Voluntarily wed.
The new ruling was delivered by The Supreme court in a long legal battle .
The legal battle between respondent Paul Ogari Mayaka and his ex-lover appellant Mary Nyambura alias Mary Nyambura Paul.
Court documents show that during their cohabitation(1986-2011), the couples acquired a matrimonial home in Dagoreti.
Upon their breakup, Mary moved to court seeking an equal share of the matrimonial property and the claim for division of the property was dismissed because the resulting cohabitation could not be accepted as marriage.
Displeased with the High Courts verdict, the matter was moved to the Court of Appeal which ordered that held there was an assumption of marriage between the two parties and proceeded to appoint the suit into two halves a share for each party.
Supreme Court’s Verdict
The matter was later moved to the Supreme court. Where the court found that there existed no marriage between the appellant and the respondent therefore the Matrimonial Property Act, Act No. 49 of 2013 were not applicable in the matter.
The Act dictates that ownership of matrimonial property vest in the spouses according to the contribution of either spouses towards its acquisition and shall be divided between the spouses if they divorce or their marriage is otherwise dissolved.
“The court has found there exists relationships where couples cohabit with no intention whatsoever of contracting a marriage, and that a marriage is voluntary union and that courts cannot impose’ a marriage’ on unwilling persons.”
However, the supreme court determined that there was a common intention of the parties at the time of purchase of the suit property that gave a rise to a build up trust between them.
Since they both contributed to the property, the court appointed the property at the ratio of 70% to the appellant and 30% to the respondent.
Lastly, the court ruled that going forward, a marriage party must prove their contribution to the matrimonial property to determine they share upon divorce.