Come we stay is no longer a direct ticket to marriage until the marital union voluntarily weds.
This follows the Supreme Court ruling in a long legal battle between respondent Paul Ogari Mayaka and his ex-lover appellant Mary Nyambura Kangara alias Mary Nyambura Paul.
In the documents by the court of apex, upon their breakup, Nyambura 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 presumed to be a marriage.
Nyambura was dissatisfied with the High Court ruling and moved to the Court of Appeal, which ordered a presumption of marriage between the two parties and proceeded to apportion the suit property into two halves, a share for each party.
The case was later filed at the Supreme Court, where the court found no marriage between the two and therefore, the Matrimonial Property Act, Act No. 49 of 2013, was not applicable.
The act provides that ownership of matrimonial property vests in the spouses according to the contribution of either spouse towards its acquisition and shall be divided between the spouses if they divorce or their marriage is otherwise dissolved.
“The Court also made a finding that presumption of a marriage is the exception rather than the rule and that the circumstances in which a presumption of marriage can be upheld, are limited,” read part of the ruling.
“The Court has found there exist relationships where couples cohabit with no intention whatsoever of contracting a marriage; and that a marriage is a voluntary union and that courts cannot impose a marriage’ on unwilling persons.”
It was determined by the court that there was a common intention of the parties at the time of purchase of the suit property that gave rise to a constructive trust between them.
The court apportioned the property at a ratio of 70 % to the appellant and 30% to the respondent since they contributed to the suit property’s acquisition, improvement, and maintenance.
In the future, the apex court ruled that a marriage party must prove their contribution to the matrimonial property to determine their share upon divorce.