Cohabitation

According to the black’s laws dictionary, cohabitation is the fact or state of living together especially as
partners in life with the suggestion of sexual or intimate relations .it is a state of living together and
having sexual relationship without being married. Two single people meet at a university and live
together to save on expenses and have a sexual relationship ,although case law has inevitably developed
to interpret the meaning of statutory language used to define cohabitation ,it has not been possible for the
courts themselves to develop the concept of cohabitation which might attract legal rights and obligations.

The subsequent case laws illustrates elements a couple deemed to be cohabiting must possess according
to its interpretation:

1. Are living with each other

Living with each other ,once a man and woman leave their respective homes and start leaving
together ,the greater presumed is that are cohabiting in the absence of any proof of legal marriage . In the
case of musa kigongo v olive kigongo, it was held that the couple despite having lived together for 20
years there was no proof of legal marriage and thus they were cohabiting.

First taken literally, it could imply that once a partner had left the home because of the other’s violence,
he or she was no longer living with the other so as to come with the statue and claim its protection and the
courts interpreted it that the couple was living together at the time she left the home but if the partner
failed to take action immediately, then the court may take it that they have not been living together in the
case of O’Neil v Williams.

Case Harrison v Lewis, where it was taken that the nine months delay in taking proceedings and the
court held it had no jurisdiction.

2. In the same household

The couple is required to be living in the same household sharing and communicating with each other,
this too could cause problems if the couple’s relationship had deteriorated but they were still living under
the same roof .In the case of Adeoso v Adeoso, the couple lived in the two bedroom flat .they slept in
separate rooms and communicated only by notes, they continued to share the living expenses .it was
described like marriage which is in the last stages of breakup.

In practical terms you cannot live in a two room flat with another person without living in the same
household because you have to share the lavatory share the kitchen, share the bathroom and take great
care not to fall over one another in most of these cases and it would be quite artificial to suggest that two

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people living at arm’s length in such a situation from which they cannot escape by reason of the housing
difficulties are to be said to be living in two separate households.

This may be relevant both to provisions of the type included within the domestic violence
legislation ,where it is sufficient that the parties are currently living together and to those where they must
have been living together for a certain period of time before they come within the scope e.g. The
inheritance (provision for family and dependents act)and fatal accidents act where both include a
cohabitant who had lived with the deceased for at least two years within the list of those who may make a
claim. In the case of kotke v saffarimi, the partners each had their own home. He deceased had worked
away from both during the week but kept a change of clothes and spent most weekends at the claimants
house and used his as his postal address and when there child was born ,he gave it as his address on the
birth certificate and later begun to use the partners house for official purposes .The court of appeal
distinguished between wanting to live in the same household ,planning to do so, and actually doing so and
agreed with his conclusion that the deceased’s center of gravity had not shifted until after the couple
discovered that the claimant was pregnant therefore the claim failed.

3. A man and woman

In Uganda for a couple to be deemed as cohabitants, they must be man and woman. In the successor
section contained in the family law act 1996 defined cohabitants as a man and woman who although not
married to each other are living together as husband and wife .It has been convincingly argued that such a
definition couldn’t be interpreted so as to include same sex because the language is too clear and
unambiguous .However the house of lords held that the similar provision in the rent act 1977 could be re
interpreted so as to be non-discriminatory and hence it provided that a person who was living with the
original tenant as his or her wife or husband shall be treated as the spouse of the original tenant so as to
be able to take over a protected tenancy as the spouse of the original tenant so as to be able to take over a
protected tenancy on the tenant’s death .

In the case of Fitzpatrick v sterling housing association and before the human rights act came into
force, it was considered that these words were gender specific and couldn’t be extended to cover couples
of the same sex. However the issue arose before them in the case of Ghaidan v Godin-Mendoza, were it
was held that restricting the ambit of the provision to hetero sexual couples was discriminatory towards
those of the same sex and that it infringed art 14 of the European convention on human rights,
therefore on appeal they agreed that the words as his wife of her wife of husband should be read as stating
as if they were his or her wife or husband.

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The act was amended to mean two persons who although not married to each other are living together as
husband wife (if of the same sex in an equivalent relationship)

4. as husband and wife.

This goes to the essence of the relationships what does it entail .The various authorities on the point
where fully, reviewed in the case of Kimber v Kimber ,there the ex-husband was required to pay
maintenance to his former wife until she remarried or cohabited .he claimed that her fiancé was
cohabiting with her fiancé and stopped payments. She then sued for the arrears, the fiancé had been a
lodger in the ex-wife’s bed and breakfast establishment but he moved out and rented a flat elsewhere
wherever he spent much of his time with her often staying the nights and he helped her run the business
concluding that the couple were cohabiting, the judge considered the following as material:

Living together in the same household, sharing a daily life, stability and degree of performance in the
relationship, finances, asexual relationship, children, intention and motivation and the option of the
reasonable person with normal perceptions.

In the case of Butterworth v supplementary benefits, the female applicant was refused welfare benefits
on the basis that she was cohabiting .in fact she was being cared for in her own home after a serious
accident by her former partner. On appeal the found that he was doing this out of loyalty and friendship
and that didn’t have, a sexual relationship and everything he did was because she was injured and they
both regarded it as temporary till they recovered and it was concluded that they weren’t living together as
husband and wife because it wasn’t the intension from the start.

The relationship must also be one which has been presented to the outside world till death do us apart
being opposite, openly and unequivocally so that society considers it to be a permanent intent .Under the
family law act 1996,a court deciding whether to make an occupation order in favor of the cohabitant must
in any event have regard to the level of commitment in the couple’s relationship .however considering the
case of ghaidan v gochin –Mendoza, it was emphasized that the importance of outward appearances and
to satisfy an objective test of whether a couple can be said to be living as husband and wife with a
necessity to present themselves as so living.

An example is a couple of the same sex where in some communities they would seek to keep the nature
of their relation private from their neighbors therefore this shouldn’t follow that the life they share
together cannot be classed as marriage like .It is common for cohabiting women not to take their partners
name and refer to themselves as Mrs in order to avoid the stigma of being known to live in sin and
therefore the couple which chooses not to demonstrate their relationship won’t be regarded as cohabiting

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and the principle was clear in the case of Kimber v Kimber , it was developed precisely because benefit
claimants hid the fact that they were cohabiting form the outside world in general and the authorities in
particular .

Differences between marriage and cohabitation

-Marriage requires a ceremony officiated by a clergy person or an officer of the court and a witness while
cohabitation can be entered into anytime by people of any age and any gender with no formal
requirements.

-Marriage must be ended by a formal legal divorce or annulment process that can be costly, time
consuming, complicated and emotionally draining while cohabitation can usually be ended simply and
informally upon the agreement of the parties however emotional costs are the same as similar to the
experienced at the end of marriage.

-Marriage is defined in the case of Hyde v Hyde and woodhouse as the voluntary union for life of one
man and woman to the exclusion of all others while cohabitation refers to the arrangement where two
people are not married but live together and they are involved in sexually intimate relationship.

-In marriage divorced spouses have the obligation to divide the property by legally prescribed ,methods in
law e.g. the Mohammedins marriage whereby the deceased ‘s estates are divided equally amongst the
survivors while in cohabitation at the end of cohabitation relation parties can usually divide property
however they wish.

-In marriage when one spouse dies ,the other has the legal right to inherit a portion of the deceased
spouse’s estate while in cohabitation when one cohabitants dies, his or her property will pass to state laws
and the surviving partner has no claim to the estate unless he or she was named in the deceased partner’s
will.

-In marriage ,if one spouse becomes ill or incompetent ,the other spouse generally has the right to make
decisions on the ill spouse’s behalf on issues health care and finances while in cohabitation no matter how
close the bond or how long the relationship has existed ,a cohabitant may need to refer to immediate
family members when it comes to making decisions for an ill or incompetent unmarried partner ,unless a
general power of attorney or health care power of attorney gives that authority to cohabiting partners.

-In marriage children born during the marriage are presumed to be the offspring of the husband and wife
while in cohabitation the father of a child born to unmarried cohabitants in not entitled to a legal
presumption of paternity and may have to establish his paternity through blood test and legal action.

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-In marriage children born to married people must be financially supported during the marriage while I
cohabitation partnership does not incur an immediate legal obligation to support children born during the
cohabitation, but my do so voluntarily and must do so if paternity is established.

The law on cohabitation in Uganda vs. other jurisdictions:

Cohabitation is not recognized in Uganda however much years people have spent or the fact that they
even children in the case of ceaser okumu v Helen dhugura, it was held that cohabitation is not marriage
according to the law in Uganda regardless of the years spent where dowry is not paid in full hence they
don’t enjoy privileges for parties who are married.

However courts have over time developed the doctrine of presumption of marriage which in effect confer
certain rights albeit with limitations to parties in a cohabitation relationship in the event of separation or
death of the spouse.

In the case of Jennifer musamali v Stephen musamali ,it was held that although the appellant and the
respondent has cohabited for years and had six children, the essential requirements of a customary
marriage that is negotiation for dowry ,payment of dowry, and gisu rituals to bless the marriage weren’t
satisfied for the relationship to amount to a customary marriage as such the plaintiff could not demand
that the defendant provides her with a matrimonial home .The above case illustrates situation where a
couple presumes that they were married yet in actual sense they were cohabiting .

Though over time case law has granted certain rights over property and other rights to parties in
cohabitation relationship in the event of separation or conflict over property as discussed below:

1.land and other properties .Article 26 of the 1995 constitution as amended allows every person to own
property either individually or in association with others, the provision of the law extends to the
cohabiting couples .In the case of Baryamureeba James v kabakonjo, according to the provision of
marriage act which recognized different forms of marriage held that a woman who had spent over 30years
with the plaintiff was a girlfriend not a wife ,however the woman was granted right over the family land
which was bound to be sold by the husband who contended had not married her and even disowned
children whose paternity had to be conformed as his through DNA test, where the couple owned a
matrimonial home the law will protect the interest of the woman in a cohabitation relationship especially
where the party lives in such a house.

In the case of Nalumasi v kasande, they granted the right over matrimonial home to the defendant
despite court finding that her marriage to the late husband was void and thus she had all along been in
cohabitation. In the case of musa kigongo v olive kigongo, granted the property rights over their

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matrimonial home to the defendant despite a finding that their 27 years together was indeed no marriage
at all.

2. Income and investments. When cohabitants live together in presumption of marriage over a period of
time, they will always invest in property and business together. As much as statutory law will not grant
rights to parties in such a relationship at the event of separation. Article 40 of the 1995 constitution
which allows persons to carry on with lawful business (economic rights), in the case were cohabitants had
made investments together, the courts will grant rights in accordance with the level of investment made
by each partner .this was the position in court in the case of kigongo v mosa kigongo, where 15%profit
arising from mosa courts apartments, a company cow owned with musa kigongo despite court finding that
they were indeed cohabiting.

3. Housekeeping allowance and maintence .Cohabitation relationship are intimate in nature often
resulting in children.in the compliance with, Article 34 of the 1995 constitution which grants a range of
rights to children and article 33 which also grants rights to women born out of cohabitation relationship
and their neither or father will have support from the other partner as long as the other partner remains un
married or not cohabiting with another partner. In the case of Jennifer musamali v Stephen musamali
cohabitated for years and had six children despite that the conditions of the customary marriage were not
fulfilled ,it was held that cohabiting with another partner and the children were living with the defendant
provides her with matrimonial home and child support .

Other jurisdictions about succession in cohabitation:

In Kenya section 2 of the marriage act 2014 defines cohabitation as an arrangement in which unmarried
couples live together in a long-term relationship resembling marriage, when a couple live together as wife
and husband and such living is acknowledged and accepted by custom and community, court will confirm
marriage as was seen in the case of Charles machani v rosemary Mora.

In the united states ,cohabitation was given express recognition under the relevant statutes such as
remedies for domestic violence or on the death of the partner and we also consider the application of the
law where it makes no special provision at all for cohabitants and uses general rules and principles such
as determining the ownership of property. Cohabitant’s knowledge of their legal position, first, social
security rules generally treat married and unmarried couples alike so that many couples who have had
experience of theses will assume that the rest of the law does not too.

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Secondly as just noted in areas of the law such as inheritance and domestic violence the position of
cohabitants has been largely assimilated with that of spouses through legislative reform, so cohabitation
May perhaps be forgiven for assuming or hoping that the law treats them the same in all circumstances.

In conclusion therefore, cohabitation as discussed above remains a sticky aspect of the regime guiding its
existence, many couples continue to cohabit in the pretext of marriage and their during and out of
cohabitation needs to be protected by enacting laws regulating or recognizing cohabitation as a form of
marriage.

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