A smart woman's legal checklist before moving in with him

A smart woman’s legal checklist before moving in with him (Photo: iStock)

In Kenya, love doesn’t automatically confer legal rights. Without marriage certificates or explicit cohabitation protections, courts can treat partners as strangers, leaving one vulnerable to financial loss, property disputes, and emotional hardship. According to Advocate Frank Oriku, a Family Law lawyer, under the Law of Succession Act (Cap 160, Laws of Kenya), succession rights are traditionally reserved for spouses and children, often excluding long-term cohabiting partners. To help women safeguard their interests, Frank provides a five-point checklist for smart cohabiting decisions:

1. Document your relationship status

Explicitly decide if you’re moving in as platonic flatmates, romantic partners without marriage plans, or a committed couple aiming for eventual marriage. 

Drafting a cohabitation agreement creates a simple cohabitation agreement (like a contract template from a legal site or lawyer). Outline how you’ll split rent, utilities, groceries, and shared assets. Include scenarios like breakups, such as one partner buying out the other’s share or death, specifying asset division. 

Gather proof of identity; both partners should have valid IDs ready: national IDs, passports, or alien registration cards (if applicable). Scan and store digital copies securely for leases, bank accounts or emergencies.

2. Financial planning and legal protections

Decide how to handle banking, such as setting up a joint account for shared household expenses while maintaining separate accounts for personal spending.

Be transparent about all debts, so that you are not caught off guard by auctioneers in the event of bankruptcy. For wills and estate planning, update or create a will and power of attorney to ensure that your partner is provided for, especially if you are not yet married, and that your children will be cared for if both parents die.

Also, review and update beneficiaries on life insurance policies, retirement accounts, and bank accounts to reflect your new living arrangement.

3. Financial and legal liabilities

 When it comes to property division, the Matrimonial Property Act 2013 protects spouses in legally recognised marriages. If you are not legally married, you may have to prove your contribution in court to claim a share of property.

And in matters of inheritance, the Law of Succession Act does not automatically recognise a girlfriend or cohabitee as a beneficiary unless you can prove marriage or dependency.

Courts consider factors like relationship length, stability, financial interdependence, and public perception when assessing cohabitation. Shared children, bank accounts, or tenancy agreements can help a partner establish an equitable claim.

4. Legal precautions

Understand “Presumption of Marriage” In some places, living together for a long time can lead to a legal presumption of marriage (common-law marriage). Be aware of the laws in your jurisdiction regarding when a relationship is considered a marriage.

Will and estate Planning, if you are moving in, you might want to update your will or designate your partner as a beneficiary for life insurance or retirement benefits.

Emergency Contacts: update your emergency contact information with your employers, doctors, and other institutions to reflect your new living situation

It’s complicated whether cohabitants have rights. While the Law of Succession did not explicitly recognise cohabitants, Kenyan courts have increasingly interpreted existing constitutional and statutory provisions to protect them in certain circumstances.

5. Plan for the future

Look ahead to keep things smooth, especially if marriage is on the horizon. Consider prenuptial agreements. If marriage is likely and assets differ (e.g., one owns property or a business), draft a prenup. It details asset division in divorce, protecting pre-relationship wealth without distrust, just smart planning

“The clearest protection to protect your cohabiting partner is to make a will. The Constitution and Law of Succession Act recognise testamentary freedom, meaning a person can dispose of their property as they choose in a will. This is crucial if you die without a will, your cohabiting partner may have to go to court,” says Oriku. Without these, Kenyan courts treat cohabitants like strangers, legally.