Come We Stay Marital Relations
By Mweni Mbuvi (about)
Are come we stay marital relations advisable? As the phrase suggests, come we stay unions usually arise where a man and a woman commence living together as husband and wife and even have children without formalizing of their union. “Formalizing” in this context refers to the carrying out or the taking of any step by the parties towards carrying out a marriage whether customary or otherwise.
Come we stay unions have a long history in our society and the world over. Despite the fact that these unions have faced religious condemnation, they appear to be now very prevalent and more so, among young boys and girls. The state of affairs is even emerging to be “the acceptable” norm. Majority of the young Kenyans are now “married” in that manner and the situation can no longer be ignored or assumed. Further, people who may not have means to carry out traditional or civil marriages have also taken advantage of this state of affairs to “get married”.
Come we stay unions which have been widely described as a temporary state of affairs pending marriage are actually considered by the parties to the unions and the society in general as “marriage” pending the carrying out of the marriage rites/ceremony. It is therefore not shocking to find that these rites are sometimes carried out even after the death of the couple or one party of the union, if only to establish that there was in fact a marriage. Others drag on and formalization of the marriage is only carried out to pave way for children of the couple to get an official marriage.
In many Kenyan traditions, a couple that has not officiated its marriage cannot negotiate, receive or pay dowry for marriage of their children. Many are the situations when children’s weddings have been postponed to allow the parents to first officiate their marriage. This is a situation that parents should avoid by engaging in formal marriages on the outset or formalizing their come we stays before it is too late.
No statutory provision recognizes come we stay unions in Kenya.
At this juncture, it is important to note that a marriage may be recognized under a presumption of law. A man and a woman may cohabit and hold themselves as a husband and wife. This scenario can raise the presumption that they are legally married. The conduct of the parties shows that they are married and the burden of proving that there is no marriage lies on the person alleging the same.
It is therefore necessary to consider what encompasses the presumption of marriage. A little history will go a long way into shedding some light on this issue of the presumption of marriage.
In Kenya, the general position of the law is that Kenya is governed by various regimes of Law as set out in The Judicature Act – Cap 8 – Laws of Kenya which sets out the Jurisdiction of the High Court, the Court of Appeal and all Subordinate Courts. Section 3 thereof defines the bodies of Law applicable in our Court as follows:-
- The Constitution of Kenya - which is the Supreme Law
- All Written Laws/ Statutes/ Acts of Parliament to include Acts of Parliament of U.K. cited in Part I of the Schedule as modified in accordance with Part II
- Common Law – under which the Presumption of Marriage falls
- Doctrines of Equity
- Statutes of General Application in force in England on 12th August 1897
- Procedure and Practice observed in the Courts of Justice in England as at 12th August 1897
- African Customary Law where parties are subject to it or affected by it.