7. Mohammedan marriage

Section 2 of the Mohammedan Marriage Act, Cap. 96, provides that a marriage between persons professing the Mohammedan faith, valid according to Mohammedan law, is valid for all civil purposes. Section 3 lets the courts receive proof, according to that law, of the marriage and of its dissolution. Registration is permitted and, when the registrar is satisfied, is recorded. Registration is evidence. It is not what makes the marriage.

"All civil purposes" does not include a matrimonial cause. Section 2 of the Matrimonial Causes Act defines marriage, for that Act, as the union of one man with one woman for life to the exclusion of all others, and it confines the Act to marriages under the Christian and Civil Marriage Acts. A Muslim spouse cannot petition for divorce, nullity or judicial separation under Cap. 102. The relief is the relief of the law under which the marriage was made, proved to the general-law court if some other question, such as succession or a criminal charge, depends on whether the marriage or the divorce existed.

In practice, Smart found, the marriage of many Sierra Leone Muslims is an amalgam of Islamic rules and community custom. There are no Kadi courts. The law the registrar is asked to record is often that amalgam. The classical requirements he sets out, and which a problem may still require, are these. The parties must have capacity. A man may have up to four wives, if he can deal justly among them. A woman may have only one husband. Difference of religion is an impediment in the classical law: a Muslim woman does not marry a non-Muslim man. A divorced woman, or a widow, observes the idda, the waiting period, before she marries again. Consent of the parties is required. The prohibited degrees of the religious law apply. The marriage is concluded before witnesses, and it is public. Dower, the mahr, is the wife's entitlement, promised by the husband. It is not the same thing as customary marriage consideration paid to her family. Smart's finding was that dower, as distinct from that payment, is often not strictly observed.

Termination, as he describes the practice, is by a judicial process, by mutual agreement, or by talaq, the husband's repudiation. A talaq is pronounced according to the practice of the parties' community. A divorce that is valid by that practice can be registered. The general-law court does not re-try the religious merits. It asks whether the dissolution is one that Mohammedan law, as proved, recognises.

A Muslim wife has the same claim as any other statutory wife under the Married Women's Maintenance Act while the marriage subsists. She has no claim under the Matrimonial Causes Act after a Muslim divorce. On intestacy, section 9 of Cap. 96 used to distribute the estate of a Muslim who died intestate according to Mohammedan law, with letters of administration to the eldest son of full age, or failing him the eldest brother. The Devolution of Estates Act 2007 now supplies the scheme for every person who dies leaving property in Sierra Leone, whatever his religion, subject to what that Act saves for family property, chieftaincy property and community property. A will, including a will recognised under Muslim law, is a will for that Act. The old belief that a Muslim may freely rewrite the heirs' shares is not the classical rule, and it is not the 2007 Act either. Classically, a bequest to a non-heir is limited to one-third, and the prescribed shares of the heirs are not altered without their consent.

The Child Rights Act, as amended in 2024, applies to a Muslim marriage as it applies to every other kind. The minimum age is eighteen. A marriage with a child is void if contracted after the 2024 Act.