You built a life together. Years under one roof, land bought "for the family," a business run side by side, children raised jointly. But there was no church wedding, no civil ceremony, no customary rites; it was just a marriage in everything but the paperwork.
Now the relationship is ending, or a partner has died, and one question dominates everything: what am I actually entitled to?
The honest answer is nuanced, and it catches thousands of Kenyans completely off guard, usually at the worst possible moment.
The Starting Point: No Automatic Rights
Kenya's Matrimonial Property Act governs the division of property between spouses. Cohabitation, however long, does not automatically create the legal status of marriage. There is no doctrine of "common law marriage" in Kenya that converts years of living together into a marriage after a set period.
On paper, the rule is stark: the person whose name is on the title deed, the logbook, or the company registration is the owner. A partner who contributed for a decade but never documented that contribution can, without legal help, walk away with nothing.
But the Courts Have Moved — Contribution Is the Key
Kenyan courts, including the Court of Appeal, have increasingly recognised a more nuanced reality. Where two people live together in a marriage-like union over a prolonged period (courts have referenced two years or more in various decisions), and property is acquired during that union, the non-titled partner may claim a share but only by proving contribution.
Contribution comes in two forms:
Financial Contribution
The easier to prove: direct payments toward the purchase price, construction costs, mortgage instalments, or the family business documented through bank statements, M-Pesa records, receipts, and title-related payments.
Non-Financial Contribution
Equally recognised but harder to prove: managing the home and raising children, labour in the family business, foregoing career opportunities to support the household, and the domestic work that freed the other partner to pursue a career. Kenyan courts have accepted these as real contributions, but they demand credible evidence: testimony, timelines, and corroboration.
Why Documentation Decides These Cases
The non-titled partner who can show years of documented or credibly corroborated contribution can succeed. The one who relies on "everyone in the village knows we were together" usually fails.
This is why, in cohabitation disputes, the first questions a lawyer asks are: *Where is the money trail? What records exist? Who can testify?*
Your Children Are Fully Protected — Regardless of Everything
This is the most important section for many readers, and the law here is unambiguous. Under the Children Act, 2022:
- Children of unmarried parents have the same rights as children of married parents.
- Parentage can be established through acknowledgement, evidence, or DNA testing.
- Both parents have equal parental responsibility rights to custody or access, and obligations of maintenance.
- A child born outside marriage carries no legal stigma; the old concept of illegitimacy no longer exists in Kenyan law.
If you separate, children's custody, access, and maintenance are resolved under the same legal framework as married parents; the parents' marital status is irrelevant to the child's rights.
The Inheritance Trap Most People Never See Coming
Here is the cruellest surprise in cohabitation law. Under the Law of Succession Act, when a person dies without a will, their property passes to defined heirs: spouse and children first. An unmarried partner is not an heir.
That means: if your partner of fifteen years dies intestate (without a will), you may have no automatic right to inherit anything, not the house you both paid for, not the business you built. The property may pass entirely to their children, parents, or siblings.
Dependants can sometimes claim reasonable provision from an estate, but that is litigation, with costs, delays, and uncertain outcomes.
The fix is simple and cheap: both partners should have wills. A will can leave property to an unmarried partner, name them as executor, and even appoint them guardian of children.
How to Protect Yourself While the Relationship Is Good
If you are in a long-term cohabiting relationship or advising someone who is, do now what a court will ask about later:
- Put major property in joint names. If you contributed to the purchase, your name belongs on the title. This is the single strongest protection.
- Keep records. Bank transfers, M-Pesa statements for construction and household costs, receipts for major purchases keep them organised.
- Sign a cohabitation or property agreement. An unromantic but powerful document that records who owns what, what each contributes, and what happens upon separation or death. Courts enforce these.
- Make wills. See the inheritance trap above; this is non-negotiable for cohabiting couples with shared assets or children.
- Formalise if that is the intention. Customary marriage is legally recognised in Kenya if the relationship is a marriage in substance; giving it legal form ends the vulnerability entirely.
Frequently Asked Questions
Q1. Are "come-we-stay" marriages recognised in Kenya?
A. Only within limits. Courts may protect a partner who proves contribution during a long-term marriage-like union, but cohabitation alone confers no automatic rights, and there is no automatic "common law marriage."
Q2. Can I claim half of the house we lived in together?
A. Not automatically. You would need to prove a contribution (financial or non-financial) to the property's acquisition, and the court would apportion shares based on that contribution.
Q3. What happens to our children if we separate?
A. The same framework as married parents: custody, access, and maintenance under the Children Act, 2022. The parents' marital status does not affect the child's rights.
Q4. If my partner dies without a will, do I inherit?
A. Not automatically; you are not an heir under the Law of Succession Act. Claims as a dependant are possible but contested and costly. A will solves this completely.
Q5. What is the single best protection?
A. Documentation, joint ownership, written agreements, records of contribution, and wills. Every one of these is cheaper than litigation.
The Bottom Line
Come-we-stay relationships are not legally invisible; Kenyan courts will protect proven contribution, but they are legally fragile for the non-titled partner, and dangerously exposed on death. Protection comes from proof of contribution and, far better, from documentation created while the relationship is good.
Are you separating from a long-term partner, contesting property, or protecting a cohabiting relationship? Contact Anyega Osiemo & Co. Advocates for a confidential consultation, and if you take one action this week, make it a will.
Disclaimer: This article is general legal information, not legal advice. For guidance on your specific situation, book a consultation with our advocates.
