Marriage in Law: Legal Definition, Types of Marriage, and Why Cohabitation Is Not Enough in Kenya

In Kenya, many couples believe that living together for decades automatically makes their union a marriage. Phrases like “come–we–stay” feel just as real as a wedding in church or at the Attorney General’s office. But here is the hard truth: Kenyan law does not recognize long-term cohabitation as a marriage.

Lawyer Danstan Omari, in his detailed explainer on the Marriage Act, 2014, shows why couples must take legal steps if they want protection. This article breaks it all down in simple terms—what counts as Marriage in Law, what doesn’t, and how couples can secure their future.

What Does the Law Define as Marriage?

According to the Marriage Act, 2014, marriage in Kenya means:

• A voluntary union of a man and a woman,
• In either a monogamous or polygamous setting,
• Registered under one of the recognized systems of marriage.

👉 Key point: Cohabitation—no matter how long—does not equal marriage unless registration happens.

The Five Types of Legal Marriages in Kenya

The Act recognizes five systems of marriage. All of them carry equal legal weight, but each has its own rules.

1. Civil Marriage – conducted by a Registrar of Marriages.
2. Christian Marriage – conducted by a licensed minister in church.
3. Customary Marriage – conducted under community traditions, but must still be registered.
4. Hindu Marriage – celebrated under Hindu rites, monogamous.
5. Islamic Marriage – conducted under Islamic law, often polygamous or potentially polygamous.

Why “Come–We–Stay” Is Not Marriage in Law

Many believe that staying together for 10, 20, or even 30 years makes them legally married. Courts once allowed a concept called “presumption of marriage”—where cohabitation plus evidence of public recognition could stand.

But the Supreme Court in 2021 ruled that this doctrine is now very limited. The Court said:

• Living together is not enough.
• Couples must prove intention, consent, and recognition by society.
• Even then, without registration, it is risky.

👉 In short: the law does not protect come–we–stay unions unless registered.

Practical Risks of Unregistered Unions

Couples who live together without registering risk serious consequences:

• Property disputes: Courts may not divide property fairly. Each person walks away with what’s in their name.
• Inheritance issues: Surviving partners may be locked out of estates.
• Maintenance battles: Claims for spousal support are harder to prove.
• Children’s disputes: Parental responsibility is recognized, but property rights remain complicated.

Practical Steps to Secure Your Union

If you’ve been in a “come–we–stay” relationship for years, here’s what you can do to avoid future heartbreak:

1. Register your marriage under civil, religious, or customary law. Visit the Registrar of Marriages or your place of worship.
2. Keep documentation—certificates, witnesses, and photos of your ceremonies.
3. Write a will or succession plan to secure inheritance for your partner and children.
4. Discuss property ownership and register joint assets early.
5. Consult a lawyer if unsure which type of marriage best protects you.

Why Registration Is Empowerment

Registering your union is not just about law—it is about:

• Security: Protecting your partner and children from future disputes.
• Recognition: Giving your relationship full legal respect.
• Peace of mind: Knowing that decades of love will not be erased by technicalities.

Conclusion

“Come–we–stay” may feel like marriage, but the law says otherwise. Marriage in Law in Kenya is about celebration and registration, not just cohabitation.

Whether you are in a church, a mosque, a temple, or a village homestead, take the extra step to register. That certificate is your legal shield.

As Danstan Omari warns, the law is clear: thirty years together without registration is still just cohabitation. Protect yourself, protect your partner, protect your family.