When James, whom we have codenamed for ethical purposes, filed his divorce case before Senior Principal Magistrate Peter Ndege, he hoped to walk away with a judgment declaring he was free from the shackles of a union that bound him to one Mary, whom we have also codenamed.
Top on the his list of grievances was that Mary was not behaving like a wife as required by the traditions, religion and marriage law.
He also lamented that she never shared household expenses during the four years of cohabitation, which left him the sole breadwinner.
However, the magistrate gave him a shocker by declaring that the four years of cohabitation were too short to presume it was a marriage.
Ndege said that the presumption of marriage is applicable in matrimonial and succession cases. According to him, only those who are in either Christian, Muslim, Hindu, customary or civil marriages can approach the court for dissolution in the event their love ends or unions hit the rocks.
In the come-we-stay arrangement between James and Mary, he said nothing in court would show they derived anything of value from each other.
“Presumption will serve no purpose if it aims to dissolve a marriage. What is the essence of presuming a marriage and at the same time dissolving it? I find a period of four years not that long, and given the evidence adduced by the petitioner herein, I find no quality in the short period that the parties herein cohabited to make me presume a marriage, even though such a presumption shall still serve no purpose herein,” said Ndege.
He added that there was no marriage between them to dissolve, and they should continue living their separate lives.
“He asks for a presumption of the marriage and a divorce. Let me start by saying that there is no need to presume a marriage just for purposes of dissolving it. Presumptions are meant to achieve a specific purpose such as in matrimonial or succession causes... I find no quality in the short period that the parties herein cohabited to make me presume a marriage, even though such a presumption shall still serve no purpose herein. The upshot is that the petition herein is hereby dismissed as unnecessary and the parties to continue as unmarried, for there was no marriage recognized by our law,” the magistrate observed.
In the case, James said that they moved in together in 2020 but four years later, their affection turned into hostility.
He said that he has since moved to the United States of America in search of greener pastures, while Mary had found a new love nest to perch on.
James claimed that their union, before the separation, was irretrievably broken.
Despite being served with court papers, Mary did not respond to the case. The magistrate directed James to shoulder the cost of his dispute.