What Happens When a Polygamous Man Dies Without a Will

  • Tom Junior Mako with his two wives Elizabeth Simaloi, and Joyce Tikoiyan in their wedding ceremony. September 18, 2020.
    Tom Junior Mako with his two wives Elizabeth Simaloi, and Joyce Tikoiyan in their wedding ceremony. September 18, 2020.
    The Standard
  • Did you know that the law of Kenya protects polygamous family units when the husband dies interstate?

    But what is dying interstate? A person who dies without leaving a will is called an intestate person.

    Section 40 of the Law of Succession Act provides for the distribution of the estate where the deceased was polygamous.

    These provisions apply where the deceased was legally married in a system of law that recognizes polygamy and is survived by different spouses and children.

    The High Court building, Nairobi
    The High Court building, Nairobi
    The Judiciary of Kenya

    It provides that in the first instance the personal and household effects of the deceased and the residue of the estate are distributed according to the houses.

    Houses refer to each of the children together with their mother.

    For example; in two households, with one wife each with five children, the estate will be divided into twelve, ten children and two wives.

    Here, the estate will be divided among the houses according to the number of children in each house. Each wife will be counted as an additional unit.

    While the law recognises polygamy on legally married spouses, what happens when one is not legally married in a polygamous set-up? Are they protected by the law?

    Family lawyer Lilian Machio speaking to Kenyans.co.ke clarified that the law does not recognise a marriage by virtue of cohabitation.

    "Marriage Act 2014 does not recognise cohabitation as a form of marriage, in Kenya, a cohabitee has no right to lay claim to any property they may have been jointly acquired should they separate. Cohabitation is referred to as a common-law marriage, living together or a domestic partnership, merely living as besties," Machio revealed.

    Machio further stated that a partner may benefit from polygamy if recognised by the community and has lived in a union for a period between seven to ten years.

    "Sometimes one can be recognised if they have been cohabiting as a spouse for maybe seven to ten years, they could have witnesses to prove that they are married, also having children bearing the name of the father while also have receipts of payments like school fees can sustain a claim, however, each case has its special circumstances," she added.

    Over time, some people do hold the belief that once a couple has lived together for an extended period of time, there is an automatic marriage under common law.

    There is an erroneous belief that a couple does not need to get into the rigours and formalities of marriage when they can simply stay together for a long period of time and they will be ‘deemed’ to be married under the law.

    Even so, living together without being married or being in a civil partnership means you do not have many rights around finances, property and children.

    Former president Uhuru signing marriage act bill into law 29 April 2014
    Former president Uhuru signing marriage act bill into law 29 April 2014.
    The Standard
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