Cohabitation is defined in the Marriage Act to mean an arrangement in which an unmarried couple lives together in a long-term relationship that resembles a marriage. It involves the mutual assumption of marital rights, duties and obligations. In Kenya, cohabitation is not recognized as a legal marriage under the Marriage Act. Sometimes cohabiting partners opt to enter into contracts to define their rights and obligations. Failure of the law to recognize cohabitation as a legal union subsequently results in the lack of a clear stipulation with regards to the status of cohabitants in Kenyan law and more so on the protections allowed under such a union. However, the courts sometimes have applied the common law principle of presumption of marriage to cohabiting couples which has great impact in that it grants some rights and protections similar to those enjoyed by couples under certain conditions. The application of this principle in the Kenyan legal system has consequently attempted to provide a better understanding of cohabitation.
It is important for cohabiting partners to understand the implications brought in by this common law principle and how it may affect their relationship.