Having a child with a man or a woman is not proof of a marriage, the High Court has ruled.
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 was married.
In the case, the woman codenamed FCR argued that she cohabited with a man codenamed CAL between 1970 and 1990 and had five children with him.
According to Justice Ongeri, her argument on the children would only hold water 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.
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.