9. Customary marriage

Smart's working definition has not been repealed. A customary marriage is a union under customary law, potentially or actually polygamous, between a man and a woman, created by the consent of the spouses and of the woman's family, and ordinarily accompanied by a marriage consideration moving from the man's side to the woman's family. The 2009 Act uses a shorter test for a marriage contracted after the Act, and the test is not quite consistent with itself. Section 2(1) says the marriage is valid only if both spouses are at least eighteen, both consent, and the marriage is contracted in accordance with the customary law applicable to either of them. Section 2(2) and (3) then allow a person under eighteen, who is not a widow or a widower, to marry with the consent of a parent, a guardian, or a magistrate. The Act says in terms that the marriage may be potentially or actually polygamous. The Prohibition of Child Marriage Act 2024 has removed the second route. Eighteen is now the minimum age of every kind of marriage, and parental consent is not an exception.

The essentials Smart found, before the statute froze some of them, were five. The parties must have capacity. A woman already married cannot marry again. A man may, if his personal law allows it. The parties must be sufficiently mature, which the groups expressed as physical and social readiness rather than as a statute of ages. The union must be outside the prohibited degrees of that group. The degrees are not uniform. What is forbidden among the Mende is not identical with what is forbidden among the Temne, and a problem that names the group must use that group's rule. Secondly, there must be consent of the man, of the woman, and of her family. A marriage without the woman's consent is not a marriage. Family consent is part of the institution, but it is not a substitute for hers. Thirdly, a marriage consideration is paid, unless her family waives it. Fourthly, the ceremonies of the applicable law are performed. In some chiefdoms, registration under local rules was also required. Fifthly, and only among the Koranko on Smart's evidence, consummation completes the contract.

Marriage consideration is not a sale of the woman, though colonial writers sometimes described it that way. It is the payment, in money or in goods, that marks the agreement of the families and that later measures what is returned if the marriage ends. It may be paid in stages. It is distributed among the woman's relatives according to the custom, not kept by one person as a price. Waiver is effective. Payment does not, by itself, prove a marriage if consent or the ceremonies are missing. Non-payment does not, by itself, disprove a marriage if the family has waived it or if the parties have been accepted as married. The 2009 Act does not make the payment a statutory condition. It makes the applicable customary law a condition, and if that law requires the payment, the payment is required.

Betrothal is the prior arrangement. It may be initiated by the families while the parties are still young. It creates expectations and, usually, payments. It is not the marriage. It can be ended. On termination the payments are dealt with according to the custom, and the children, if any, follow the rule of that group. A betrothal of a child is no longer lawful. The Child Rights Act forbids forcing a child to be betrothed or to be the subject of a dowry transaction. The Prohibition of Child Marriage Act 2024 makes a marriage with a child void and criminal. Section 2(2) of the 2009 Act, which speaks of parental consent where a prospective spouse is under eighteen, cannot be used to marry a child. Section 5 of that Act, which allows a court to declare a minor's customary marriage invalid, is overtaken where the 2024 Act has already made the marriage void.

Registration under the 2009 Act is obligatory for marriages before and after the Act. Either party applies to the local council. A marriage contracted after the Act is to be registered within six months. A marriage that already existed was to be registered within six months of the Act. The application is a statutory declaration that the essentials of the applicable customary law were met, supported by the parents or guardians, or if they are dead by a relative of each spouse who is at least eighteen. The council registers and posts a notice. Anyone may object. If the objection succeeds, the entry is expunged, and the marriage is then deemed not to have been contracted. Missing the six months, or failing to register at all, is not a ground of voidness under section 2. A successful objection is.

Section 6 deems two people to be married under customary law if their personal law is customary law, both are at least eighteen, and they have lived together as husband and wife for a continuous period of five years, even though no rites were performed. The deemed marriage may be registered. It is a statutory marriage by conduct, not a finding that rites do not matter when the parties did purport to marry by rites and got them wrong.

A person who is already married under the Christian Marriage Act, the Muslim Marriage Act or the Civil Marriage Act cannot enter a customary marriage with someone else. A person in a customary marriage cannot, while it lasts, marry someone else by Christian, Muslim or civil rites. The same two people may marry again under one of those Acts, and the customary marriage is then deemed dissolved. If the same couple celebrate both a statutory rite and a customary rite together, the consequences are those of the law they have expressly agreed. If they have agreed nothing, the court is thrown back on their intention, which is the question in the conflict chapter.

A non-native is not, on Smart's view, incapable of contracting a customary marriage. Savage v Macfoy is the old contrary case, and he rejects it. Hyde v Hyde decided that English matrimonial remedies do not apply to a polygamous union. It did not decide that only a monogamous marriage can be contracted in a country that recognises both. The capacity question today is factual: did these parties contract a marriage that the applicable customary law recognises, and do they meet the 2009 Act?