Savage v Macfoy

Facts

Macfoy, a non-native from Freetown, married a Yoruba woman by customary law while domiciled in Nigeria. She claimed to be his widow and to administer his estate.

Issue

Can a non-native contract a valid customary marriage?

Held

Osborne CJ held the marriage was not a lawful marriage and that she could not administer the estate. He said the common law allowed him only a monogamous marriage.

Principle

The decision treats polygamy as simply unlawful for a non-native.

Why it matters

Smart rejects the reasoning. Hyde did not decide that a polygamous marriage cannot be contracted. The 2009 Act does not confine customary marriage to 'natives'. Capacity is a question of the applicable customary law and of the Act.

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