In a landmark ruling, the High Court of Kenya has declared that bearing children with a man does not constitute proof of marriage. Justice Asenath Ongeri delivered this verdict in a case where a woman, referred to as FCR, claimed to have cohabited with a man, CAL, from 1970 to 1990, during which they had five children together. FCR sought recognition of their relationship as a marriage, aiming to claim rights to properties acquired during their time together.
FCR contended that their two-decade cohabitation and the birth of their five children should be sufficient grounds to establish a marriage. She requested the court to mandate DNA testing to confirm CAL’s paternity of the children, believing this would substantiate her marriage claim.
However, Justice Ongeri dismissed the case, stating that paternity alone does not equate to marriage. She emphasized that evidence of having children is pertinent in matters of child maintenance or succession but not in disputes over matrimonial property. The judge noted, “The fact that a man and a woman sire children does not prove the existence of a marriage.”
The court further observed that the presumption of marriage should be applied sparingly and only when there is compelling evidence to support it. In this case, Justice Ongeri found no indication that either party had consented to or intended to enter into a marriage. Consequently, FCR’s claim to the properties in question was denied, as she failed to demonstrate a legal basis for her entitlement.
This ruling underscores the importance of formalizing marital unions through recognized legal frameworks. It serves as a cautionary tale for individuals in long-term relationships to ensure their unions are legally acknowledged to safeguard their rights, especially concerning property and inheritance matters.
Justice Asenath Ongeri, appointed to the High Court in 2015, has served in various capacities, including at the Garsen, Mombasa, and Kericho High Courts. She is currently serving in the Family and Civil Division at the Milimani High Court.
