Date Posted: 1/2/2013 12:09:38 PM
Posted By: Macawear88 Membership Level: Silver Total Points: 163
There has been a lot of debate on whether come we stay is recognized by law as marriage or not. There are different opinions and different interpretation of legal provisions surrounding come we stay circumstances. This resource seeks state the legal position with a bid to elucidate on the province of family with an inclination towards come we stay.Generally, Kenya recognizes two broad categories of marriages. These are the customary marriages as well as the statutory marriages. These categories are expressly and directly recognized in the Kenyan jurisprudence. The fact that come we stay is not expressly considered in law does not mean that they cannot be implied. Since it is clear that there is no clear legislation recognizing such marriages a question as to the legality of the same need to be answered. The legal basis of come we stay marriages is premised upon presumption. This is a common law concept that was inherited from the English laws. Its application continued due to the fact that without it some women would suffer great loss in case anything happened to the husband. This is quite common in succession disputes where the husband's relatives try to rely upon 'the no marriage existed' to rob the wife and the children of their inheritance.Come we stay is presumed to be a marriage where the parties lived together and addressed each other as husband and wife for a substantive period of time. This should not be confused where people lived together for other reasons. For instance, where two students live together in order to save on the rent expenses, a marriage cannot be presumed. However, if A and B live together and carry themselves as husband and wife then the presumption occurs. There are several case law authorities on this.The problem that has existed is for how long should a man and a woman stay together to induce this presumption? There is no standard amount of time. The Marriage Bill seeks to have two years as the minimum. The criterion used to arrive at this amount of time is not known. The most important thing to understand is the fact that for a come we stay to be presumed marriage the circumstances are evaluated. Questions such as capacity to enter into a marriage are considered. Important to note is the fact that this presumption was meant to protect women who dedicated their lives and love to men without going through the marital technicalities.
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