presumption of marriage Flashcards
meaning of presumption
in marriage: which applies
purpose: 3
its a legal inference by court that can be proved or disproved.- s.4 of EA +119 of EA
presumption of fact and rebuttable
purpose: it allows the court to proceed on the basis that there is a marriage for:
1. succession purpose
2. death
3. divorce benefits
BUT DOES NOT MAKE THE MARRIAGE VALID
ceremony
elements: 4
case: 1
doubts arise on the validity of the marriage
elemets:
1. capacity
2. ceremony
3. cohabitation - s.2 MA defines it as unmarried live together for a long time.
4. reputation
case:
1. chief adjudication v bath: the ceremony was not done in a registered building and not registered.
without ceremony - 3 elements
cases: 7
proof of presumption - 1
Elements:
1. capacity
2. cohabitation - long and uninterrupted
3. reputation: notoriety ( not only to your family members but the society at large)
cases:
1. rosemary aoko munjal v noel munja
- VRM v MRM
- Hottensiah wanjiku v public trustee - cohabitation recognised to presume marriag e
- RLA V FLO - reputation
- KO V JO
- mary wanjiku v esther kiarie - capacity
- RNN V PS
balance of probability
mary njoki in 1984: no need of proof of attempt to go through a form of known marriage in law
burden of proof
he who alleges must prove
standard of proof- 1 case
cogent - yawe v yawe
presumption of divorce
1 case
issues with the judgment
re estate jecinter of njoki
problem:
1. judicial activism
2. divorce is highly regulated by statute
3. OKN V OPN: without an existing marriage, there cannot be sharing of matrimonial home owned by the spouses.
- would wreak havoc and diasv some innocent parties.