Customary laws are the unwritten norms and practices of communities which date back from pre-colonial times and have undergone transformations due to colonialism and capitalism.
It is a body of customs and traditions which regulates various kinds of relationships within a community.
The presumption of marriage which was applied in the polygamous African customary law setting became applicable when parties involved failed to provide proof that they had been married under customary law.
Reason for this was that the woman applicant was able to claim part of the deceased’s estate in as his wife under customary law. The decision is now firmly established as a principle following a number of subsequent cases.
In one case, the court applied the presumption of marriage so as to hold that a woman who had chosen a cohabitation relationship was married to the deceased and as such was a wife for purposes of the Act, enabling her to lay claim on the deceased’s estate.
Come we stay marriage
Come we stay unions usually arise where a man and a woman commence living together as partners and even go ahead and have children without formalizing their union lawfully.
This type of union is accepted in customary laws as well as societal laws
despite the fact that it is frowned upon by religion.
This state of affairs is considered normal right now, with majority of the young Kenyans now “married” this way making the situation extremely difficult to ignore.
Majority of the people who do not have the means or finances to carry out traditional or civil marriages have taken advantage of this state of affairs so as to start their families.
Come we stay unions have been widely considered as a temporary state of affairs awaiting marriage, they are actually considered by the parties to the unions and the society in general as a union pending the carrying out of the marriage rites and rituals.
Therefore it is not shocking to find that these rites are sometimes carried out even after one or both parties are deceased, if only to establish that there was in fact a marriage.
In many Kenyan traditions, a couple that has not officiated its marriage cannot negotiate, receive or pay dowry for marriage of their children despite their union being legally recognized by both laws.
The Proposed marriage bill of 2007 defines “Marriage” in a much broader aspect and recognizes marriage arising from cohabiting with someone.
The marriage bill proposes at Section 3 to define “Marriage” as follows:-
“Marriage means the voluntary union of a man and a woman intended to last for their life time.”
This Bill also proposes at Section 7 to provide for the “Presumption of Marriage”. The said section reads;
“Where it is proved that a man and woman having capacity to marry have lived together openly for at least two years in such circumstances as to have acquired the reputation of being husband and wife, there shall be a rebuttable presumption that they were duly married.”