Here at the Global Legal Research Center we receive many interesting foreign law inquiries. Questions about laws that govern matters of personal status, including customary and religious laws, arise frequently from many of the African jurisdictions I cover. One of the issues that I have had the opportunity to research is the legality of proxy marriage and divorce under Islamic rites in The Gambia.
A proxy marriage is a marriage ceremony in which one party to the marriage is not physically present and is instead represented by another person. It may also involve a situation in which both parties to the marriage are absent, known as a double proxy marriage.
The law of The Gambia that applies to people of the Islamic faith permits marriage and divorce by proxy. This form of marriage is not unique to Muslims or to the African continent. Both the Roman law and the Canon law permitted proxy marriages. Some have traced the practice back to 15th century Europe, where travel was time-consuming and dangerous, and when members of European monarchies and the noble classes often contracted proxy marriages to create political alliances. Many countries, including Belgium, France, and Italy, also authorized proxy marriages in wartime. In the United States, proxy marriages were apparently common during World War II; today, four states (California, Colorado, Montana and Texas) still recognize this form of marriage with certain restrictions.
In The Gambia, Islamic law governs matters of personal status of Muslims. As in other African countries, legal pluralism is a key feature of The Gambia’s legal system. A former British colony, The Gambia is comprised of three different systems of law: formal (statutory law and common law); customary; and the Islamic law based legal system. Islamic law, which is administered by Cadi courts, governs certain issues including marriage, divorce, and inheritance involving Muslims, who make up 90% of the country’s population.
Before the advent of colonialism in Africa, Islamic law was broadly applied in a number of areas. Together with customary law, Islamic law was applicable (p. 46) to every aspect of life in the area known today as The Gambia. With the arrival of the British, however, its role was dramatically reduced. The formal application of Islamic law during the British colonial period was recognized through the Gambia Mohammedan Law (Recognition) Ordinance of 1905. This law established an Islamic court with jurisdiction over “Mohammedan natives” to exclusively apply Islamic law “relating to civil status, marriage, succession, donations, testaments and guardianship.” Further limits were put on the application of Islamic law through the Law of England (Application) Act, which put in place a precondition (p. 46) for the application of Islamic law widely known across Africa as “the repugnancy test.” Section 5 of this Act states:
Nothing in this Act shall deprive a court of the right to observe and enforce the observance, or deprive a person of the benefit, of any customary law [courts considered Sharia law part of customary law (p. 46)] existing in The Gambia, as long as the law is not repugnant to natural justice, equity and good conscience, nor incompatible either directly or by necessary implication with any law for the time being in force.
The law in The Gambia does not impose any restrictions on contracting or dissolving a Muslim marriage by proxy. Although the state may issue some rules on the subject, Islamic law primarily regulates the contracting and dissolution of Islamic marriages. The Muslim Marriage and Divorce Act of 1941 states in section 4 that all Islamic marriages “celebrated or given according to the rites and observances of the Muslim religion customary and usual among the community or sect in which the marriage … takes place shall be valid….” . This law does not expressly address the question of whether parties to an Islamic marriage should be physically present during their marriage ceremony. What this means is that the validity of a proxy Islamic marriage in The Gambia depends on whether all the minimum requirements under the controlling Muslim rites have been followed.
It seems that Muslim rites applicable in The Gambia allow for contracting double proxy marriages. In The Gambia (p. 49), the Maliki madhab is the main school of Islamic jurisprudence, although the Shafi, Hanafi, and Hanbali schools are also influential. All these schools appear to permit (pp. 92-95) marriage by proxy as long as certain minimum requirements (pp. 4) are observed. These include the proxy’s capacity to enter into contracts, his/her status as a free person (the person must not be a slave), and mental state (that he/she is a person of sound mind). Both the bride and groom are permitted to designate a proxy via written or oral agreement and the proxy may be of either sex.
The same rules apply regarding dissolution of marriage by proxy. The only distinguishing (pp. 300-01) marker seems to be the fact that a man is allowed to designate his wife to act as his proxy in dissolving their marriage, while the opposite is not true.
The following resources were used in preparing this post:
- Emanuel Akomaye Agim, The Gambia Legal System (Art Words Production, 2009).
- Mohamme Muhyi al-Din, Al Ahwal Alshakhsya Fi Al Sharia’ah AlIslamiyah [Family Law Under Islamic Sharia’h Law] 92-95 (The Library of Mohammed Ali, 1966).
- The Women’s Bureau, First and Second Workshops on the Legal Status of Women: With Emphasis on the Matrimonial Bill on Formation and Dissolution of Muslim Marriages (Nov. 1987)