The highly controversial and publicized separation of Machakos County Governor Alfred Mutua from his long term partner Lillian Nganga raises key questions on the legal effect of the breakdown of long term partnerships, especially those that were not publicly christened with the ceremony of a white wedding. When this famous couple first came to the public’s attention in 2012 many accused Ms. Nganga of being a homewrecker and an illegitimate wife.
As far as the public record reflects, the two never had a formal wedding ceremony but have lived as a married couple – cohabiting, jointly owning and contributing to investments, and property even carrying out county duties as Governor and first lady together. Many people reasonably presumed that the two were a happily married couple, but from a strictly legal perspective, this is not the case.
Section 3 of the Kenyan Marriage Act defines marriage as “the voluntary union of a man and a woman whether in a monogamous or polygamous union and registered in accordance with this Act.” By this definition, a marriage is only validated by registration under the Act. While the Marriage Act and common law make provisions for the presumption of marriage for the purposes of inheritance, where are long-term partners like Lillian Nganga left when their relationships break down?
The Marriage Act also provides a definition for cohabitation as “an arrangement in which an unmarried couple lives together in a long term relationship that resembles a marriage.” Even so, no rights accrue to a cohabitee at the breakdown of the arrangement – a cohabitee has no entitlement to the property secured in the duration of the relationship. The Kenyan Matrimonial Property Act protects the monetary and non-monetary contributions of spouses and is applied just as strictly to persons in registered marriages – there are no express protections for property acquired during cohabitation.
So what middle ground is there for long-term partners in relationships that are not formalized marriages, especially in relation to the ownership of property and rights to benefit from both financial and non-financial contributions? Lillian Nganga’s ownership of forty-five per cent of the shares in Ndash Enterprises under which she and her former partner set up multiple businesses including hotels is a great place to start. For people in long-term relationships that are not formalized and registered marriages, the jointly owned property should be structured in such a way that they each individually own portions of that property.
This can be done through shareholding in companies to hold the property on the couple’s behalf, or any other binding and written agreement, expressly dividing the property as the parties agree. It is crucial that people in such arrangements are intentional and thorough about protecting their interests and contributions in their relationships as the umbrella of the law may only consider them in the event of their partner’s death.
In respect of any gifts gained during the relationship, the recipient of the gifts may only continue to peacefully possess them if it is clear that they were not given in contemplation of the relationship ending in marriage. The legal position otherwise is that gifts given in contemplation of marriage are refundable in the event that there is no marriage.
For any children borne out of such unions, they are likely to be protected under parental responsibility requirements arising from the Children’s Act whether or not their parents are together, and will enjoy the law’s cover even in their death under the principle of dependency under the Succession Act.
As a general rule of thumb for non-marital long-term unions – own property in your respective names or else in a company with express provisions on the distribution and ownership of such property – whether it was co-bought, gifted or invested from a place of love and affection. Also, do not assume a marriage unless the Office of the Attorney General has officially put their stamp on it (and your partner has preferably put a ring on it, too).
Natasha Teyie, Kioi & Co Advocates
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Natasha Teyie is a lawyer with corporate, commercial and dispute resolution law experience. She is proficient in company law, mergers and acquisitions, corporate advisory, intellectual property, capital markets, conveyancing and immigration law.
She has a sound understanding of companies needs and processes and is passionate about legal facilitation for tangible, traceable business success. She is also a writer for an online newsletter, The News Illustrated.