Illegally married to a cheating spouse

By Anthony Thiongo

Q: I have been living with a man I call my husband for several years now. We have three children together aged between three and nine years. However, we have never formally married nor has he paid any dowry. Our life together has been good until last year when I discovered that he has been unfaithful to me. We have since had endless disagreements. He has repeatedly told me that if I am not content I should move out but leave the children behind. What are my legal rights in the circumstances especially since I am not financially stable? What would my fate be if he decided to marry another woman?

A: You have raised several legal issues. You are unsure of your legal status vis-‡-vis marriage, as you are not legally married either in church, mosque or temple, nor under customary law. Your only recourse rests in common law.

Common law marriage arises out of the actions of a man and woman. The courts have over the years come to recognise common law marriages and grant them the status of normal marriages. A common law marriage arises when a couple has cohabited for a period of time and held themselves out to the world as husband and wife. If the union has borne fruit by way of children, an even stronger case is made out for a declaration of a common law marriage.

However, not every cohabitation results in a common law marriage. The couple must have cohabited for a considerable time. And although there is no set period of cohabitation in law, it must be a period longer than a year. The couple too, must have presented themselves to the world as husband and wife. They can do this in different ways such as referring to each other as husband or wife, wearing wedding rings, filing joint tax returns or using the same last name. An inference must be drawn from the couple’s behaviour that they intend to get married formally but have not had the marriage ceremony.

The law permits you to file a petition in court seeking a declaration that you are married to the father of your children under common law. In the event of a separation you may at the same time apply for alimony or maintenance for yourself as a wife.

Under the common law of England, a man married under customary law may not marry a second wife. You would, therefore, have good grounds for filing a suit, seeking injunction to prevent your husband from marrying another woman before divorcing you. Further to this, once you are declared married under customary law, you may apply for division of matrimonial property based on the direct contribution you may have made to the acquisition of the property notwithstanding the fact that the property may be in his name.

As regards custody of children, both the father and mother of a child have custody rights. In the event of a dispute over custody, you may approach a children’s officer to arbitrate over the dispute. If arbitration fails you may move to the children’s court for determination of actual custody and visitation rights. Also note that the general principle applied is that children of tender years are generally better off in the care and custody of their mother. Your husband’s threats that you are free to move out but must leave the children with him, therefore, have no foundation in law.

Q: I am the mother of two girls who are currently in the custody of their father in India. I reside in Kenya.

We have been separated for more than four years.

I only get to see the girls for one week per year when I visit them at their boarding school in India. What can I do in the circumstances to see my children more often and what are my legal rights over the children?

A: You are the mother of the girls and have parental responsibility over them. Hence, you have the right to decide where they shall reside and the right of custody over them. Similarly, their father has parental responsibility and rights over the children as well. The problem arises when the mother and father differ over issues of custody and residence of the children. You have not stated whether you have tried arbitration. If not, your first step should be to try and get someone your husband respects to bring the two of you together and discuss the issue with a view to arriving at a more satisfactory arrangement.

In the event arbitration fails, your only option is to seek legal redress. The Children’s Act provides that where the parents of a child cannot agree on custody, the court may make appropriate orders as to custody and visitation rights. Your situation is complicated by the fact that the children are not within the jurisdiction of Kenyan courts. However, this does not prevent you from filing suit at the Children’s Court and seeking custody orders. India is a Commonwealth country. The court order may, therefore, be registered in the Indian High Court and enforced as if it were a court order of an Indian court. Alternatively, you may file suit in India seeking custody of the children.

Remember that in making any orders, the court shall be guided by the best interests of the children.