Cohabitation is the fact or state of living together especially as partners in life, usually with the suggestion of sexual relations, according to Black’s Law Dictionary, Ninth Edition. It is the act of living together on grounds of emotional and physical intimate relationship and having a sexual relationship without being married.

Where two persons of opposite gender, for whatever reason (usually pregnancy) start living together and having sexual relations without conducting any form of marriage, be it customary or statutory, they cannot be regarded as married in the eyes of the law irrespective of how long they have been together. The best way to describe their relationship is mere cohabitation.

Note that in a case where the woman is pregnant and the man’s family go to meet with the woman’s family just to introduce themselves as the ‘people who are’ responsible for the pregnancy and no bride price is paid, neither was any family rite performed, such an event is at best a family meeting. It is not a marriage, irrespective of how cordial the meeting went, or how much food, drinks and partying happened thereat.

Note also that payment of bride price and express consent of parents of the bride are essential ingredients of a customary marriage that cannot be dispensed with. Absence of these ingredients means there was no marriage conducted in the first place and any act of living together by the partners is just cohabitation, not marriage.

Hence, where this kind of arrangement falls apart and parties are no longer interested in living together, they have no business going to customary court for dissolution or annulment of their ‘marriage’, because there is nothing to dissolve or annul.

All such persons need to do is move their property out of the place of cohabitation and go their separate ways.

However, where there are children in such a relationship, and the parties are unable to agree on who gets the custody of the children, the situation between them can quickly deteriorate with ensuing messy drama.

Most of the time, the parties’ aim of denying their partner custody of the children is not because they think the children are better off with them, but because they want to punish their partner or to prove their prowess.

In such a case as this, either of the parties may approach a family court (usually in magistrate courts premises) in order for the magistrate to help them determine to whom the custody of the children should be.

Custody of children is a very sensitive issue that the courts do not take lightly. They are first and foremost moved and guided by the wellbeing and welfare of the children and not the interest of the warring parent. Hence, custody will only be granted to a party that the courts believe will take care of the children better.

The courts will not allow themselves to be used as an instrument of punishment, vengeance or egotism in the hands of either party. So, the courts will put the interest of the children first, even if it means neither of the parties will have the custody.


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