Cohabitation where two adults (male and female) either in contemplation of a marriage or for the purpose of sexual relationship decide to live together. The physical character of a marriage is not in any way complete without both partners cohabiting. Even though there is a general presumption that where there is cohabitation there exist a marriage, the act on its own does not carry with it any legal weight as it is frowned at by a Customary Law.
The prohibition of action tort between husband and wife created great hardship for third partner, where for instance a third party is adjudging to pay damages to a spouse in respect of a tortuous act for which he and the other spouse are responsible. The bar on spouse suing each other is an anachronism, which was based on the need for preserving the unity of husband and wife.
The rule has outlined its usefulness and in modern times has nothing to offer to the harmony of the matrimonial home. It is submitted that a change in the law is long overdue. The court was invited to interpret and give a legal cover to a prolong cohabitation. Even though the parties are adults but that the mere living together does not parse constitute a customary law marriage.
Cohabitation is generally opposed to as it does not create room for parental consent and more importantly it circumvents the payment of bride price which is one of the most celebrated acts of marriage in customary law marriage. Customary law provides for the payment of bride price, it does not insist that the payment must be completed before the marriage is contracted.
But at least part payment must be made before a valid marriage can be performed. The parties to cohabitation without marriage are under the traditional system free agents in the sense are not bound by any of the obligation of marriage.
No wonder it was held that mere living together does not constitute a customary law marriage. Each party is free to associate with third parties of the opposite sex without evoking any legal sanctions. Thus, the man cannot claim damages from the third party with whom the woman indulges in sexual intercourse.