Comparing maintenance and property rights in marriage under customary law and statutory law in Africa

ABSTRACT Two dominant legal systems operate in a typical post-colonial African state: the indigenous customary law of the African people and the Received Colonial Laws. Despite the elevation of statutory laws above customary law under the modern state structure in Africa, customary law is still pervasive and regulates most aspects of the personal lives of Africans. Most commentators argue that the practice of customary law discriminates against women. This paper discusses the practice of customary law, its impact on statutory marriages, and how human rights have engendered a new trajectory in the development of customary law in Africa. The paper identifies the positive influence of the Received Colonial Laws and human rights law on maintenance and property rights and suggests the adaptation of the positive aspects of statutory law, the amendment of marriage laws, and the enactment of gender-sensitive legislation on marriage rights for women.