Some Legal Consequences of Marriage by Native Christians in British Africa
| Date | 01 June 1939 |
| DOI | http://doi.org/10.1111/j.1468-2230.1939.tb00745.x |
| Author | Julius Lewin |
| Published date | 01 June 1939 |
MODERN LAW REVIEW
June,
1939
SOME LEGAL CONSEQUENCES
OF
MARRIAGE
BY
NATIVE CHRISTIANS
IN BRITISH AFRICA
Among Britain’s exports to her colonies there is an invisible one that
has
attracted hardly any notice, even from lawyers.
It
is
English law.
When Englishmen‘went abroad to found
a
score of colonies in the nine-
teenth century, they almost invariably took with them not only the com-
mon law and equity, but also “the statutes of general application which
were in force in England
at
the time the administration was created.” At
the same time, lest anyone perceive in this silent process symptoms of
imperial arrogance, all the early Orders in Council, using the same phrases,
enjoined lawyers and judges to apply native law and custom
“so
far
as
it
is
not repugnant to natural justice and morality.”’
Of the complications produced by this conflict of laws, few are more
impressive than those arising from the marriage of native Christians in
all parts of British Africa. Having been converted to Christianity,
a
vary-
ing but never negligible number of Africans, usually among the educated
minority and often men of property, are married by Christian rites or,
much less frequently, by civil
rttes.
It
has been repeatedly assumed by the Courts that the consequences of
such
a
marriage should be regulated by English and not by native law.
The mere fact that the parties were Christians and contracted
a
Christian
marriage under the local Marriage Ordinance
is
taken to be
“
sufficient to
show that it was their intention that the marriage contract and all the
consequences flowing therefrom should be regulated exclusively by English
law.”e
$n point of fact, however, neither the parties nor the missionary who
performs the marriage ceremony would normally be aware of its legal
implications, as is shown by the problems afterwards presented to the
Courts.
The first question that arises is whether
a
native already married by
native custom has the right to contract
a
Christian marriage and, con-
versely, whether one married by Christian rites can marry by native
custom without committing bigamy. The question is no academic one;
everywhere in Africa the natives are polygamous and converts to Christian-
ity not seldom fail to live
up
to the moral standards legally implied in
a
monogamous relation.
Legislation has partly settled the matter in most of the tropical de-
pendencies. In Nig~ria,~ the Gold Coast,* Tanganyika: Kenya,6 and
Uganda’ the Marriage Ordinance provides that
a
person married under
it
(and thus by English law) shall be incapable of contracting
a
valid marriage
under any native law or custom.
It
is not clear
if
a
marriage according to
native custom is dissolved by
a
subsequent Christian marriage.
1
For the references, see my article on “The Recognition
of
Native Law and
Custom in British Africa
”
in
Jouvnal
of
Comparative Legislation
and
International
Law,
February,
1938.
a
Cessavto
v.
Goncallo,
I
Nigerian L.R.
41,
distinguishing
Cole
v.
Cole,
I
Nigerian L.R.
15.
Laws, Cap.
68,
s.
35.
Laws, Cap.
105.
s.
44.
5
Laws, Cap.
92,
s.
35.
@
Laws, Cap
167,
s.
36.
’
Laws, Cap.
103,
s.
37.
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