11. Which law, and which court

Internal conflict is the everyday problem. External conflict, of domicile and foreign decrees, is rarer and is summarised in the divorce chapter.

Where both parties share a customary law, that law should be applied, even if the Local Court sits in the area of a different people. Many courts in fact apply the law they know, which is the law of the area. Section 14(2) of the Local Courts Act 1963 allows a transfer to a court better fitted to the parties' law. Where the parties are of different groups, there is no statutory ranking. Smart's suggested rule is the one to use in an answer. If they share a law, or if they have agreed a law, that law applies. If not, the court chooses by the nature of the transaction and by what is just. It should not pretend that the mere existence of two customs means there is no customary law, and then apply the common law by default.

Between customary law and the general law the statute is section 76 of the Courts Act 1965. In a civil matter before a non-customary court, customary law which is not repugnant, and which is not incompatible with an Act, is to be observed where substantial injustice would be done by applying any other law. A party cannot claim the benefit of customary law if the contract, or the nature of the transaction, shows that he agreed to be governed exclusively by the general law. Marriage is not an ordinary contract. A Christian or civil marriage is an agreement to be governed by the general law for the essentials of that marriage: monogamy, and the matrimonial causes that belong to it. Demby v Bishop is the illustration. The court will not lend the husband of a Christian marriage a customary remedy for a second woman.

It is not an agreement to abandon customary law for every other purpose. Cole v Cole said that a Christian marriage clothes the parties and their offspring with a status unknown to native law, and applied English intestacy. Smith v Smith disagreed, and said it is wrong to treat every person who marries in church as having left custom for the whole of life. Coleman v Shang is the statement Smart adopts, and the one to prefer. A person subject to customary law who marries under an ordinance does not, by that fact alone, cease to be subject to customary law. Customary law yields only where a statute excludes it. Section 26 of the Christian Marriage Act is such a statute for the property of a native, and it excludes the general law rather than customary law. The Matrimonial Causes Act is such a statute for divorce of that marriage, and it excludes customary law.

The children's legitimacy follows the parents' marriage. Their personal law does not stay frozen. Bamgbose v Daniel shows that "children" in a statute includes the children of a valid polygamous marriage. When they are adult they choose their own form of marriage.

A double celebration is now express. If the same couple marry both by customary rites and by Christian, Muslim or civil rites, section 3(2) of the 2009 Act says the consequences are determined by the law they have expressly agreed. If a person who is already in a customary marriage later marries the same person under the Christian, Muslim or Civil Marriage Act, the customary marriage is deemed dissolved. Marrying a different person under one of those Acts, while the customary marriage lasts, is void.

Choice of court follows the same line. The Local Court tries a customary marriage, its divorce, and a claim founded on it. It does not try breach of promise, seduction, or a question of civil status such as a declaration of legitimacy. The magistrate tries maintenance of a deserted statutory wife, including a Muslim wife, and bastardy. The High Court tries petitions under the Matrimonial Causes Act. It does not try an original claim to establish or dissolve a customary marriage. A Special Magistrates' Court was created in 1967 to hear customary matters in the Western Area, because ordinary magistrates were not a Local Court and the Western Area has no chiefdom Local Court. It has not been the forum students should assume is sitting.

Domicile remains the connecting factor for the essential validity of a marriage in the external sense, and for the jurisdiction to divorce a monogamous marriage. At common law a wife takes her husband's domicile for the duration of the marriage and cannot acquire her own, even if she is judicially separated or deserted. The three-year residence jurisdiction is a statutory exception for her petition. It is not a separate domicile. Customary divorce does not depend on his domicile. She obtains it where the custom and the Local Court allow.