Problem
Two ceremonies
Abu, whose personal law is Mende customary law, marries Fatu in 2023 under Mende rites. Marriage consideration is paid and both are over eighteen. In 2024 he goes through a ceremony under the Christian Marriage Act with Binta, and does not tell the minister about Fatu. Binta discovers the facts and wants the Christian ceremony annulled. Abu says the customary marriage was not registered, so it does not count, and that a man may have two wives. Advise Binta.
issue
Is the Christian ceremony void because of the customary marriage, and does non-registration save it?
rule
A customary marriage after the 2009 Act is valid if both spouses are at least eighteen, both consent, and the marriage is contracted under the customary law of either of them. It may be polygamous. Registration is obligatory, but section 2 does not make want of registration a ground of invalidity. A successful objection can expunge a registration. It cannot create validity where there was none, and it is not a condition the other way round. Section 4 provides that a person in a customary marriage shall not, while it lasts, marry another person by Christian rites. Section 1 of the 1965 amendment requires a declaration that neither party is in a subsisting customary marriage. Baindail holds that a potentially polygamous marriage is a marriage, so that a later monogamous ceremony with a different person is bigamous and void. The Prohibition of Child Marriage Act does not arise on these ages. The High Court can annul the Christian ceremony. It cannot dissolve the customary marriage.
application
The Mende rites, the payment, the consents and the ages satisfy the customary law and section 2. Non-registration is a breach of the duty to register. It does not dissolve the marriage and it does not make the marriage void. Abu's right to a second customary wife, if Mende law allows it, is a right inside customary law. It is not a right to a Christian marriage with Binta. The Christian ceremony is void for want of capacity. Binta does not need a decree in order to be free, but a decree of nullity puts the voidness on the record and protects a later marriage of her own. She has no claim for maintenance as a wife, because she is not one. She may have a claim in deceit if he procured the ceremony by a false declaration, which is a separate question.
conclusion
Binta is not married to Abu. She should seek a decree of nullity. Fatu remains his customary wife until that marriage is dissolved under customary law and the dissolution is dealt with under the 2009 Act.
Essay
Fault, and the bars that survive it
Sierra Leone has not adopted irretrievable breakdown. Explain the grounds on which a Christian or civil marriage can be dissolved, and the bars that can still defeat a petitioner who proves one.
issue
What must be proved under section 5, and when must or may the court refuse a decree?
rule
Section 5 of the Matrimonial Causes Act allows either spouse to petition for adultery, for cruelty, or for desertion for a continuous three years. Only a wife may petition for rape, sodomy or bestiality. Insanity is not a ground. Cruelty, on Russell v Russell and Evans v Evans, as applied in Macaulay v Macaulay, is a course of conduct causing danger to health or safety, or a reasonable apprehension of it. Desertion requires separation, an intention to end cohabitation permanently, absence of consent, and absence of just cause. Boyle v Boyle requires constructive desertion to be grave and weighty and to amount to expulsion. A petition is ordinarily barred for three years after the marriage unless the case is one of exceptional hardship or exceptional depravity. Connivance, condonation and collusion are absolute bars. The petitioner's own adultery, delay, cruelty, desertion or conduct conducing are discretionary bars. Churchman describes connivance as a willing consent.
application
A petitioner who proves adultery still fails if he promoted it, or if he forgave it and took the respondent back, or if the suit is a bargain to hide a defence. A petitioner who has also committed adultery is not automatically refused. The court weighs the whole marriage. A single slap does not become cruelty by being called one. A consensual separation does not become three years' desertion by the calendar. The restrictive bar is easy to miss in a problem about a short marriage: the ground may be proved and the petition still too early, unless hardship or depravity is made out. None of these grounds is available to a spouse of a customary or Mohammedan marriage. Those marriages end under their own law.
conclusion
The decree is a finding of a matrimonial offence, not a finding that the marriage has broken down. Proof of the offence is the start. The bars are the rest of the answer, and the absolute bars are fatal.
Problem
The house after the funeral
Kadiatu and Lamin lived together, unmarried to anyone, for seven years in a house he bought in his own name in Freetown. She paid for food and the children's clothing. He died in 2024 with no will, leaving her, their two children whom he recognised, and his mother. The house is not family property. His brother says Kadiatu was never a wife, that the children are illegitimate, and that the mother should take the house. Advise Kadiatu.
issue
Who is a spouse and who is a child under the Devolution of Estates Act 2007, and who takes this estate?
rule
The Act applies whatever the religion or ethnic origin, and it excludes family, chieftaincy and community property. This house is not that property. A spouse includes an unmarried woman who cohabited with the unmarried deceased as his wife for at least five years immediately before the death. A child includes a child born while the deceased was unmarried, if he recognised the child. Where a spouse, a child and a parent all survive, section 8 divides the estate thirty-five per cent to the spouse, thirty-five per cent to the child, fifteen per cent to the parent, and fifteen per cent by customary or Muslim law if applicable. If that law cannot be applied, section 28 shares that fraction equally among the beneficiaries who already take. Section 9 gives a single house to the spouse and the child as tenants in common. She may also reside there for life. Gissing is the authority against treating housekeeping alone as a purchase of a beneficial share while he was alive. Death brings a different statute. Cole v Cole is not the distribution.
application
Seven years of cohabitation, both unmarried, makes her a spouse. She does not need a customary rite or a deemed marriage under section 6, though she may have one if their personal law is customary. The recognised children are children, in equal shares of the children's portion. The brother takes nothing in this class of survivors. The mother's fifteen per cent is real, and so is the reserved fifteen per cent. Her claim to a share of the house by way of a trust, based only on food and clothing, is the Gissing problem and is weak. Her claim as spouse under the Act is not. The house itself is dealt with by section 9, not by the brother's view of legitimacy. Letters of administration are hers to apply for.
conclusion
She should apply for the grant. She takes thirty-five per cent as spouse, the children thirty-five between them, the mother fifteen, and the reserved fifteen according to section 8 or, if no customary or Muslim law applies, equally under section 28. The house is hers and the children's.
