Africa: Shariah, custom and civil law in one country

1Overview: legal pluralism

The colonial legacy left many African countries with layered marriage laws. Civil marriage Acts (on the English or French model) are usually monogamous and make bigamy a crime, while marriages under Islamic law or custom may be polygynous. The key question for a Muslim couple is not only "is polygyny permitted?" but "under which system is the marriage registered?"

2Nigeria

• Marriage Act (federal). Marriages registered under this Act ("statutory" marriages at a registry or licensed church) are monogamous. Marrying again while a statutory marriage subsists is bigamy under the criminal law.
• Islamic and customary marriages are not subject to the Marriage Act and may be polygynous. In the 12 northern states that have extended Syariah jurisdiction since 1999–2000 (beginning in Zamfara), the Syariah courts and state Syariah Courts of Appeal handle marriage, talaq and custody according to the Maliki school.
• Registration. An Islamic nikah is usually held at a mosque or at home with a wali and witnesses; registration by local government or religious councils is not uniform, so wives are advised to keep both the mosque marriage certificate and the local government registration.
• Implications. A man who has married under the Marriage Act cannot "switch" to polygyny simply by later conducting an Islamic nikah — that second marriage may amount to bigamy.

3Kenya

Marriage Act 2014 consolidated marriage law and recognises five forms of marriage: Christian, civil, customary, Hindu and Islamic. Islamic and customary marriages are presumed to be polygamous or potentially polygamous, while Christian, civil and Hindu marriages are monogamous (section 6(2)–(3)).

• For Islamic marriages, the Kadhi, sheikh, Mukhi or imam authorised by the Registrar records the details of the marriage, issues the couple a certificate and delivers the record to the Registrar for registration (section 57). Section 57 sets no time limit; the six-month period in section 55 applies to customary marriages.
• A potentially polygamous marriage can be converted to a monogamous one if both spouses voluntarily declare it before a marriage officer; a polygamous marriage can be converted only if the husband has just one wife at the time (section 8). The Act provides no conversion the other way, and a person in a monogamous marriage may not marry again (section 9).
• Kadhi's Courts, recognised by the Constitution of Kenya 2010, have jurisdiction over personal status, marriage, divorce and inheritance where all parties are Muslim and agree.

4Senegal: the option at marriage

Code de la Famille 1972 (Law 72-61 of 12 June 1972) introduced a distinctive system: the man chooses an option for the marriage regime by declaration to the civil registrar, either at the marriage or later (articles 133–135):

1. Monogamy — the husband may not marry again;
2. Limited polygamy — the husband himself sets the maximum number of wives he may have at the same time (article 134);
3. Polygamy — up to four wives at the same time (article 133).

The monogamy and limited-polygamy options are final and bind the man for life, even after the marriage in question is dissolved; he may only narrow an earlier limit further by a new option (article 134). If the man makes no option, the marriage falls under the polygamy regime (article 133). This model echoes the Hanbali view that honours the wife's conditions in the contract (Sahih al-Bukhari 2721).

5South Africa: recognition of Muslim marriages

• Civil marriages under the Marriage Act 1961 are monogamous.
• Customary marriages — including polygynous ones — are recognised by the Recognition of Customary Marriages Act 120 of 1998.
• Muslim marriages went unrecognised for a long time, leaving wives (especially second and later wives) without rights to property and maintenance after divorce. In Women's Legal Centre Trust v President of the Republic of South Africa [2022] ZACC 23 (28 June 2022), the Constitutional Court declared the Marriage Act 25 of 1961 and the Divorce Act 70 of 1979 inconsistent with the Constitution for failing to recognise Muslim marriages and suspended the declaration for 24 months for Parliament to legislate. The Court also granted interim relief: Muslim marriages may be dissolved under the Divorce Act; where a husband is a spouse in more than one Muslim marriage, the court must consider all relevant factors, including any contract between the spouses, and make an equitable order. In response, the Divorce Amendment Act 1 of 2024 (assented to on 6 May 2024; Government Gazette 50651, 14 May 2024) inserted a definition of Muslim marriage into the Divorce Act, with provisions on the welfare of children, redistribution of assets and contracts between the parties where the husband is a spouse in more than one Muslim marriage. Status of legislation recognising Muslim marriages for all purposes beyond divorce (check with the authorities of the country concerned).
• Scholarly bodies such as the Muslim Judicial Council (Cape Town) handle religious marriages and divorces, but are not statutory courts.

6Somalia, Sudan and North Africa

7Divorce and wives' rights

• In the Shariah and customary systems, talaq and khulʿ are carried out through a qadi or a Syariah Court; in Kenya, the Kadhi's Courts; in northern Nigeria, the state Syariah courts.
• An unregistered wife risks losing her rights to property, maintenance and inheritance in the civil courts — the South African case shows the effect.
• Injustice between wives may be a ground for dissolution (tafriq lil-darar) according to the Maliki school, which is dominant in West and North Africa.

8Key points for Malaysians

• Decide the registration system. If marrying an African national, make sure the marriage is registered under a recognised system (registered Islamic marriage, not merely a nikah at a mosque) and obtain an official certificate to be re-registered in Malaysia.
• Malaysian polygyny permission is still required for a Muslim man resident in Malaysia (Act 303 s.23; state enactments), even if the country where the contract is made permits it.
• Check your partner's marital status. A prospective husband who has married under a monogamous civil Act cannot lawfully marry again in that country.
• Documents. Marriage and divorce certificates must be translated and legalised (embassy legalisation/apostille) before they are accepted by the state religious affairs office.
• See also cross-border marriage and recognition.

Sources & references