6. Whose property it is

At common law the husband became, on marriage, the owner of his wife's personal property. Equity invented the separate estate so that property could be kept from him. The Imperial Statutes (Law of Property) Adoption Act 1932 abolished, from 1933, so much of English law as restricted a married woman's power to acquire, hold and dispose of property. She holds and disposes as a single woman. She sues and is sued in her own name. The 1949 amendment provides that a husband is not liable, merely because he is the husband, for her ante-nuptial contracts or for her torts. A purely domestic promise, with no intention to create legal relations, is still not a contract. That is Balfour v Balfour.

Whether the 1932 Act reached backwards was litigated for years in the Bright cases. The result to state is the one the West African Court of Appeal reached. A woman married before 1933, who became entitled to property before that date, could dispose of it by a will made after 1932, and the husband's old interest did not survive the will. A disposition between living persons of property she already owned before the Act still had to reckon with the old law. Property acquired after the Act is her own, whether she married before or after it. Marriage itself, since 1933, does not pass one spouse's property to the other.

Section 26 of the Christian Marriage Act is the local exception, and it is easy to miss. Where one party to the marriage is a native, the marriage does not of itself affect that native's property. The spouses may agree how their property is to be controlled, and they may dispose of it by will. Where both are natives, the property is subject to the customary law of the tribe or tribes to which they belong. The Civil Marriage Act is to be read as one with the Christian Marriage Act, and Smart treats section 26 as applying to a civil marriage as well. The section assumes that one can already say what "the property of such native" is. It does not, on his reading, answer a dispute about whether an asset bought during the marriage belongs to the husband or the wife. Where both are natives and the asset is clearly one spouse's, tribal law governs it. He thought that rule too blunt for parties whose way of life is not the life the section imagined in 1906. The examination point is still the section, not his criticism of it.

Where the general law does apply, and the asset was acquired for the marriage, English learning is what the courts have been offered, because there is almost no local authority. An express agreement is conclusive. That is Pettitt v Pettitt. If there is no agreement, the court infers an intention from the contributions. A purchase by the husband in the wife's name is presumed to be a gift, the presumption of advancement. A purchase by the wife in the husband's name is presumed to be a resulting trust for her. Either presumption can be rebutted. Gissing v Gissing refused a share based only on indirect contributions, such as paying for food and clothing so that the other spouse could save the price of the house. Smart's submission, which is not a decision, is that a Sierra Leone court should be readier to give an equal share in the matrimonial home where the wife's work at home is what made the husband's savings possible. State the English rule, and then his submission, and do not confuse them.

Whoever owns the house, each spouse may occupy it while the marriage lasts, as an incident of consortium, unless that spouse has lost the right by conduct. A deserted wife may remain. The right is a mere equity. It does not bind a purchaser for value without notice, and it does not bind a mortgagee who takes without notice. National Provincial Bank v Ainsworth is the case. The English Matrimonial Homes Act 1967 does not apply here.

During the marriage a spouse does not steal the other's property merely by taking it, so long as they are living together, unless the taking is at the moment of desertion. That limit is section 36 of the Larceny Act 1916, which Sierra Leone adopted. It is a limit on theft. It is not a licence to destroy the other's goods, and it is not a defence to domestic violence.

A wife in a customary marriage now has her own statutory capacity. Section 18 of the Registration of Customary Marriage and Divorce Act 2009 says she may personally acquire and dispose of property, and may enter into contracts on her own behalf. That provision sits on top of the customary rules about who owns what is acquired during the marriage. It does not, by itself, give her a share of his farm. It does stop any argument that she has no legal power to own or to contract.