Family Law, Succession and Personal Law: Plural Regimes
The plural system
Gambian family law is plural. Civil and Christian marriages are celebrated under statute; Muslim marriages, divorce and inheritance fall to the Cadi Courts applying Sharia; customary law governs some communities. The examiner tests whether you know which regime applies, the formal requirements of each, and how an estate is distributed.
Marriage and its incidents
- Essentials: consent of both parties, capacity and minimum age, and registration in the prescribed form. Muslim marriages also require mahr (dowry) and, in practice, witnesses.
- Polygamy is permitted under Sharia, limited to four wives and conditioned on equal treatment; it is not available under civil marriage.
- Divorce may be by talaq, by khul' (with the wife returning consideration), or judicially in the Cadi Court; civil divorce rests on statutory grounds.
- Maintenance (nafaqah) is a husband's duty during the marriage and the waiting period; custody (hadanah) favours the mother in early years, while guardianship (wilaya) concerns property and marriage consent.
Succession
- Testate succession requires a valid will. Under Sharia, a Muslim may dispose of only one-third by will, and not in favour of a statutory heir.
- Intestacy for Muslims follows fixed Quranic shares, with residue to male agnates, generally with a male receiving twice a female.
- Debts, including unpaid mahr, are paid before distribution; then funeral expenses; then the will; then the shares.
- Probate or letters of administration are obtained to administer the estate.
Worked example
A Muslim man dies leaving a wife, a mother, one son and two daughters, and an estate of GMD 240,000 after debts. There is no will.
Reasoning: the wife takes one-eighth with children, GMD 30,000; the mother takes one-sixth, GMD 40,000. The residue, GMD 170,000, is shared in a 2:1 ratio among five portions, giving the son GMD 68,000 and each daughter GMD 34,000. English intestacy rules play no part, and the mahr would have been deducted as a debt.
Traps
Applying English intestacy to a Muslim estate; forgetting that a will cannot benefit an heir under Sharia; ignoring registration of the marriage; and confusing custody with guardianship.