10. Customary divorce and the household

The household is organised by the applicable custom, and the customs differ. The husband ordinarily chooses the residence. Where there is more than one wife, they are ranked, and the first wife has a precedence the later wives do not. Guardianship of the wife, in the old sense of the husband's control of her movements, is part of many customs and is limited by the general law. He has no right to beat her. Chastisement that injures is an offence under the general criminal law, and it is domestic violence under the 2007 Act. Her duties, as Smart records them, are the domestic and agricultural duties of that community, and his duty is to maintain her. A failure to maintain is, in many groups, a ground on which she may leave.

Matrimonial wrongs are answered first inside the custom. Adultery with a customary wife is a wrong against the husband, for which he may claim compensation, often called woman damage. Seduction and harbouring have their equivalents. The sanction may be a payment, a swear, or a ritual. Those are customary sanctions. They are not a substitute for a criminal prosecution where the conduct is also a crime. A husband married under the Christian or Civil Marriage Act does not have the customary action for adultery with his statutory wife. The remedy is damages under section 20 of the Matrimonial Causes Act, or a petition. A native married under statute who commits adultery with a customary wife can still be sued under customary law. His own marriage does not immunise him. That distinction is Smart's, drawn from Coleman v Shang and from the local pattern of Ackah v Arinta.

Death ends the marriage. On the account of the customary law, the ending is not complete until the widow has been ceremonially washed or, if she was pregnant, until she has delivered, where she has not remarried in between. The washing is the mourning rite. It is not a marriage to the dead man.

Widow inheritance is not the levirate, and it is not a ghost marriage. Neither of those is practised under the customary laws of Sierra Leone. A later marriage is a new marriage. The old expectation is that she chooses the new husband from inside the dead husband's family. The groups do not treat a refusal in the same way. The Temne, Susu, Limba, Loko, Kissi and Kono leave the choice to her, and a marriage outside that family is not a cause for refunding the payments. The Mende, Krim, Sherbro, Gallina, Koranko and Yalunka expect her, if she remarries at all, to remarry inside the family, and if she marries outside, the payments are refundable. A Cabinet directive of 27 April 1963 said she should be free to remarry the person she chose, and that the payments should not be refunded. It was a policy statement. It was not an Act, and no District Council adopted it under the power to alter customary law. It has no force of law. Some chiefdoms follow it. Others ignore it. The answer is the custom of the group. It is not the directive, and it is not a pretended decision that the custom has been struck down. No Sierra Leone judgment has been found that struck a family-law custom down on the repugnancy clause.

Divorce is extra-judicial or judicial. Extra-judicial divorce is a divorce by the families or by the spouses according to custom, without a Local Court decree. Where the wife is the one who leaves, Smart's finding is that the divorce is not complete until the marriage consideration has been refunded to the husband, or he has waived the refund. Until that moment she is still married, and a second marriage is void. A judicial divorce is a decree of a Local Court. The court may treat the refund, or the order for a refund, as part of the decree. Grounds that he found widely recognised, for either spouse, include persistent cruelty, desertion, incurable insanity, a persistent and unreasonable refusal of sexual intercourse, and witchcraft. Barrenness is treated as a ground in some groups and is open to the objection that it is not a matrimonial offence in any acceptable sense. Grounds he found used by husbands alone include persistent adultery, repeated disobedience, and refusal to allow a further wife. Grounds used by wives alone include non-maintenance and impotence. The 2009 Act does not replace these grounds. It provides for registration of a dissolution that has already taken place under the applicable customary law. Notice is given within six months, with a declaration that the marriage was dissolved according to that law. An objection may be filed. If the objection succeeds, the record of dissolution is expunged.

The effect of divorce on the payment is the main money question, and it is not the same in every group. Among the Mende, Krim, Sherbro and Gallina the refund depends on who is at fault and on whether there are children. Among some northern groups the accounting is different again. A problem that names the people must not be answered with a single national tariff. The general proposition that is safe is that the payment is returnable in whole or in part when the wife is the one who ends the marriage without sufficient cause, and that it is not a windfall to the husband when he is the one at fault. Children do not go automatically with the payment. Their custody follows welfare, and under customary law often follows the lineage that has the right, which may be the father's line. The Child Rights Act overlays that with the best interests of the child.

Section 18 of the 2009 Act is the property rule to add to whatever the custom says. The wife has capacity to acquire and dispose of property herself, and to contract on her own behalf. Custom may still say that the farm cleared by the husband, or the house he built, is his. It may no longer say that she is under a legal incapacity.

A customary divorce, once valid, leaves both parties free to marry again under customary law. It does not, by itself, satisfy a general-law court that a monogamous marriage has been dissolved. The parties prove the customary dissolution if they need to. If one of them later marries under the Christian or Civil Marriage Act while the customary marriage still subsists, that later marriage is void.