This judgment constituted three related cases (Bhe, Shibi and SAHRC), which were decided together and concerned the African customary law rule of primogeniture. In Bhe, a mother brought an action to secure the property of her deceased husband for her daughters. In Shibi, the applicant was denied the right to inherit from her deceased brother’s intestate estate under African customary law.
In this decision, the Constitutional Court effectively banned polygamy in Benin. The Court found that Article 143 of the Benin Persons and Family Code was unconstitutional and discriminatory against women because it allowed polygamy only for men while women were to remain monogamous. Consequently, the Court declared this provision contrary to Article 26 of the Benin Constitution, which requires gender equality.
The Deceased Estates Act provides for all issues related to wills and inheritances, and disputes thereof. The Act is gender neutral in terms of who may make, execute, and receive inheritances. Unless otherwise provided for in the Act, inheriting property to which a deceased person was entitled at their death under other written or customary law is prohibited. The Act provides protection for the property rights of all members of the immediate family and dependents of a person who dies intestate.
The applicant was given refugee status and had successfully applied for permission for his second wife to join him in Ireland. The present case arose when he sought to have his first wife join him. In considering the legal consequences of a polygamous marriage entered into in another country, the Supreme Court ruled that, where a man had married two wives under the laws of Lebanon, the first marriage is valid under Irish law but the second is not. The appellant (husband) had married two women in a manner permissible under the laws of Lebanon (their previous state of domicile).
The applicant was in a polygamous Muslim marriage. After her husband died intestate, the respondent, the executor of the deceased’s estate, refused the applicant’s claims on the basis that polygynous Muslim marriages were not legally recognised under the Intestate Succession Act. The court held that precluding the applicant from an inheritance unfairly discriminated on the grounds of religion, marital status, and gender, and was therefore inconsistent with section 9 of the Constitution.
Petitioner, an Indonesian male, challenged the constitutionality of a marriage law requiring monogamy with an exception that allows polygamy only with the consent of the wife and the permission of the court (Law Number 1 Year 1974 regarding Marriage). The law requires the husband to submit an application to the court of his domicile with his wife’s consent in order to engage in polygamy.
This law sets the legal age of marriage without parental consent at 21 years of age. With parental consent, girls may marry at age 16 and men may marry at age 19. Marriages under the legal age are void and there are penalties for knowingly entering into or authorizing child or early marriage.
Witnesses testified that Madame H.T. insulted her husband’s co-wife and mother in law. The Appeal Court granted divorce to Monsieur Y.K. on the sole basis that by insulting his mother his first wife had harmed his husband honor and dignity and made marital life impossible. However, quarrels between co-wives do not characterize a serious insult in a polygamous marriage. Moreover, by asking for divorce from the first wife only, the husband committed a serious injustice and violated his duty of impartiality with his wives.
The Marriage Act 1978-40, as amended by 1979-13, 1979-32, 1980-55, 1982-27, 1983-2, 1994-11 and 1994-22, prohibits marriages between family members, according to Schedule 1. The Act does not expressly include or prohibit marriage between same-sex couples; however, same sex marriage is not recognized. Although the concept of “marriage” is not defined, the Act prohibits marriage between persons under 16 in section 4 (Marriage between persons under 16 years void).
All civil, customary and religious marriages under Section 12 of the Act, as long as either between a man and a woman, or cohabitation of a man and a woman as if they were married for a significant period of time, all qualify for the legal status of marriage. However, under Section 14, to qualify as having the capacity to be married under the law, the man and the woman must be older than 18 years of age, be of sound mind and not be within prohibited degrees of family relations.
