Message one – I am Bintu Hawa Sesay. In 2004, I entered into a customary marriage with my late husband. We had three children and lived in the village of Ropolar. During the course of our marriage, we bought several properties, including our matrimonial home. My husband died a year ago, and his family has told me I can either marry one of them or take my kids and move back in with my parents. They have taken away all the papers for the properties that my husband and I bought. I want to know what the law says about me in this situation. Please advise me.
Message two – I have been married to my husband for over fifteen years. We had a traditional marriage that was registered. In January 2017, my husband abandoned me and our two children. He moved with another woman to one of the houses we constructed together. During our marriage, we built three houses. Seven months ago, in July 2022, my husband suffered a heart attack and died without making a will. Now, the girlfriend of my late husband is asserting that she is the common law wife and making claims to all properties, including the home where I currently reside with my children. She has given me two months to move out of my residence, or she would call the police to evict me. I am confused; I have no idea what to do. Please advise me.
Thank you for your inquiries. The distribution of the properties of a person who dies without leaving a valid Will is governed by the provisions of the Devolution of Estates Act of 2007. Pursuant to subsection 1 of section 1, the Act applies to everyone who dies leaving property in Sierra Leone irrespective of the person’s religion or ethnic origin – except family property, chieftaincy property, or community property held under customary law.
Your customary marriage does not preclude you from benefiting from your late husband’s estate. This is because a customary marriage is a valid marriage in law and is so recognized by section 2 of the Devolution of Estates Act 2007, which defines marriage to include “marriage under the Civil Marriage Act, Christian Marriage Act, the Mohammedan Marriage Act or any CUSTOMARY law.” (capitalization mine) Consequently, as the surviving spouse of your late husband, you have the legal right to share his estate with your children.
As a matter of law, you have the legal right to administer his properties and distribute them in accordance with the law. This right is provided for in subsection 2 of section 3 of the Devolution of Estates Act of 2007, which provides that “The spouse of an intestate and in the absence a spouse, the next-of-kin of the intestate shall be entitled to apply for letters of administration in respect of the deceased’s estate.” Taking out letters of administration will authorize you to administer and distribute your husband’s estate.
Upon taking out letters of administration, you will be under an obligation to distribute his properties in strict compliance with the laws, specifically section 8 of the Devolution of Estates Act 2007, which prescribes how the distribution shall be done:
(a) 35% to the surviving spouse;
(b) 35% to the surviving child;
(c) 15% to parent surviving parent and
(d) 15% in accordance with customary or Muslim law, as applicable.
Bintu Hawa Sesay, regarding the topic of remarriage, you are not required by law to marry any of your late husband’s siblings or cousins. Consent is one of the prerequisites for a lawful marriage, thus, no one can force you to marry against your choice.
In addition, it is illegal for them to threaten to evict you from your matrimonial home if you do not comply with their requests. According to subsections 2, 3, and 4 of section 33 of the Devolution of Estates Act of 2007, it is illegal to evict you and your children from the matrimonial home before the distribution of your husband’s estate. On summary conviction, such conduct is penalised by a fine not exceeding Le 5,000,000.00 or by a period of imprisonment not exceeding two years.
Furthermore, their intermeddling with the properties of your deceased husband is illegal. Section 32 of the Devolution of Estates Act of 2007 makes it an offence for anyone without lawful authority to take possession of, causes to be moved, or otherwise intermeddles with any property belonging to the estate. Should they be found guilty of such an offence by a court of law, they shall be liable to a fine not exceeding Le 5,000,000.00 or to a term of imprisonment not exceeding one year or to both fine and imprisonment.
Please hire a lawyer to help you take out Letters of Administration in respect of the estate of your deceased husband. This will enable you to administer and distribute the properties.
A critical issue is whether the ‘girlfriend,’ having cohabited with your husband for over five years, can inherit from his estate. At first glance, one would think that she has a right to benefit from the properties based on section 6, subsection 1 of the Registration of Customary Marriage and Divorce Act of 2009, which provides as follows:
“Where the personal law of the cohabiting persons is customary law and the persons –
(a) are not below 18 years; and
(b) have lived together as husband and wife for a continuous period of not less than five years,
they shall be deemed to be married under customary law notwithstanding that they may not have performed and customary rites of marriage.”
But section 1 of the Registration of Customary Marriage and Divorce Act of 2009 defines “cohabiting” persons to mean “persons who, WHILE NOT MARRIED, have lived as married persons for a period of not less than five years.” This position is reaffirmed by section 2 of the Devolution of Estates Act 2007, which defines a spouse to include “an unmarried man/woman who has cohabited with an unmarried woman/man as if he/she were in law his/her husband/wife for a period not less than five years immediately preceding the death of the intestate or testate.”
Hence, for the ‘girlfriend’ to claim that she is a spouse and therefore entitled to benefit from the estates, the deceased must not have been married to another person at the time of cohabitation. This is not the case in your situation because, at the time, the girlfriend cohabitated with your husband, he was already married to you. Therefore, the girlfriend has no legal basis for laying claims on the properties of your deceased husband.
Also, her threats to evict you from your matrimonial home are unlawful. Section 33 subsections 2,3 and 4 of the Devolution of Estates Act 2007 makes it an offence for anyone to evict you and your children from the matrimonial home before the distribution of your husband’s estate. Such conduct is punishable on summary conviction to a fine not exceeding Le 5,000,000.00 or to a term of imprisonment not exceeding two years.
Furthermore, her actions of intermeddling with the properties of your deceased husband are illegal and have serious legal consequences, as section 32 of the Devolution of Estates Act of 2007 makes it an offence for anyone without lawful authority to take possession of, causes to be moved or otherwise intermeddles with any property belonging to the estate. Should the court find her guilty of such an offence, she shall be liable to pay a fine not exceeding Le 5,000,000.00 or to a term of imprisonment not exceeding one year or to both fine and imprisonment. Please hire a lawyer to help you take out Letters of Administration in respect of the estates of your deceased husband. This will enable you to administer and distribute the properties.