Survey of African Marriage and Family Life by Arthur Phillips

Author:Arthur Phillips [Phillips, Arthur]
Language: eng
Format: epub
Google: 4tpPAQAAMAAJ
Publisher: International African Institute
Published: 1967-01-15T03:40:21+00:00

SECTION III

STATUTORY MARRIAGE

VIII

THE OPTION OF STATUTORY MARRIAGE1

Introductory

THE fundamental difference between the conceptions of marriage inherent in African native law, on the one hand, and in the legal systems of most European countries on the other, was sufficient in itself to entail the creation of a legal dualism in this sphere, as an inevitable consequence of the opening-up of Africa. The introduction of European marriage law would have been dictated, if by no other consideration, by the presence of European settlers and residents; but it seems probable that, in fact, other considerations usually did operate from the outset—in particular, (a) the need for a lex loci in respect of marriage, and (b) the desire to make available a legal form of ‘Christian marriage’2 for those Africans who, on grounds of religion or civilization, might require it.

With regard to the establishment of a lex loci, it is significant that in many territories the introduction of European law was effected (or at any rate placed on a statutory footing) by means of an enactment entitled simply ‘The Marriage Ordinance’ (or the equivalent). This seems to indicate an intention, not merely to make provision for a particular community or class of persons, but to lay down what was to be the general law of the land on the subject of marriage, i.e. an intention to legislate for all marriages other than those which might fall within the scope of some special law.3

For the present purpose, the most important question is that of the provision made to enable Africans to exercise the option of contracting marriage under a system of law different from their original personal law and involving the renunciation of polygamy.1 Such provision is at the present day contained, expressly or by implication, in the statutory law of almost all territories; but there is considerable diversity both as to the conditions for the exercise of the option, and also as to the extent to which it is available. Three broad categories may be distinguished:

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