Impact of Duration of Cohabitation on Succession in Cohabitation Marriages

The succession framework for cohabitation marriages in Kenya is unclear, necessitating research to address the knowledge gap regarding inheritance rights. This study investigated whether the duration of cohabitation influences succession outcomes in such unions. Using qualitative desktop research, the study examined the legal and societal implications of cohabitation in Kenya. The research finds that the Court of Appeal in Kenya emphasizes the importance of long cohabitation evidence and general repute in establishing a presumption of marriage. However, succession plans in cohabitation marriages only take effect after the union ends, and there is a lack of clear laws defining property inheritance for cohabiting couples. Women are particularly vulnerable to disinheritance, while men appear less affected. Courts do not directly address cohabitant rights, but cohabitees may be presumed to have equal shares as tenants in common. In conclusion, the law governing succession in cohabitation marriages is undefined, and courts play a significant role in determining succession plans. There is a lack of clear laws globally and regionally on addressing cohabitation issues such as inheritance and presumption of marriage. The common law principle of presumed marriage has been developed in Kenya, but amendments to the Law of Succession Act have not fully resolved the challenges faced by cohabitation marriages. Intestate succession lacks a clear framework for cohabitants, and their rights are not on par with those of married spouses. It is recommended that Courts should find a balance between preserving autonomy and safeguarding the disadvantaged in cohabitation marriages. Statutory provisions should be enacted to establish requirements for legal recognition of cohabitation marriages, including higher standards of proof based on duration of cohabitation, quantitative and qualitative factors, and the presence of children. Kenyan laws should recognize and incorporate cohabitation marriages, ensuring inheritance rights and treating properties acquired during cohabitation as matrimonial property. The rights of children and involvement of extended families should also be considered in property distribution. Overall, comprehensive legal frameworks are needed to protect the rights of cohabiting partners in succession, property distribution, and inheritance matters.