Breaking News: Having Children With a Man Is Not Proof Of Marriage- Court Rules
The high court jas ruled that having a child with a man or a woman is not proof of a marriage.
Justice Asenath Ongeri in her verdict surrounding a matrimonial dispute said that even if a man or a woman proves that he or she got a child with the other, the paternity test cannot be the basis of an argument that they were married.
In the case, a woman who once cohabited with a man (between 1970 and 1990) argued tjat they were married and had five children with the man.
She asserted that the man unceremoniously kicked her out of the matrimonial property, demolished it, and re-married.
To prove that there was a marriage, she asked the court to order the children and man’s DNA tested.
While dismissing her case, the judge said that she had not proved the existence of marriage by using the children as evidence.
“The applicant (woman) applied to the court seeking DNA tests to be conducted to prove the paternity of her five children. I find that proof of paternity is not evidence of a marriage. The fact that a man and a woman sire children do not prove the existence of a marriage,” said Justice Ongeri.
According to Justice Ongeri, her argument on the children would only be relevant if it was in a child maintenance or succession case.
“The evidence on paternity is relevant only in maintenance and succession cases but not in matrimonial property disputes. I find that the applicant has failed to prove that she was married to the respondent,” said Justice Ongeri.
According to the petitioner, the man owns five acres of land in Kericho, another 10 acres at Burgei, Bomet, and 18 acres at Ngata, Nakuru County which they acquired while they lived together .
She further argued that it was during this time (20 years of cohabitation) when they lived together that she made an indirect input to the purchase of the properties and improvement of the properties by cultivating, tilling, weeding and tending to the tea bushes on those land parcels when he was away working.
In his response, the man denied everything arguing that he never had any children with her, and never cohabited with her adding that there was no customary marriage under Kipsigis traditions.
The man further told the court that he does not own land in Kericho and no longer owns the land in Bomet.
While denying any existence of marriage, he told the court that he was rather married to another woman and had seven children with her.
In a nutshell, he asserted that there was no land or property that he holds in the trust of the petitioner and her children.
The petitioner’s witnesses told the court that they knew the two were living together as husband and wife and they had children.
A village elder further testified in her favour informing the court that he knew both parties and that she was chased away and the father tried to intervene.
On the other hand, the man’s three witnesses also argued that they know the current woman who has seven children as his wife .
Justice Ongeri in her judgment stated that the presumption of marriage is on its deathbed owing to the change in matrimonial properties law. “As such, this presumption should only be used sparingly where there is cogent evidence to buttress it,” she said adding that there was no evidence that either the man or the woman had consented or intended to marry.
Justice Ongeri said: “I find that there is no evidence that supports a finding in favour of the presumption of marriage in the instant case. I find that in the current case, there is no evidence that the parties intended to marry and neither was the consent by both parties demonstrated.”
The judge also found that although the woman had argued that the properties were bought while they were together, she did not prove that she had an interest in the same.
