The public debate surrounding Mariama Jammeh v Pa Famara Sanyang has generated more heat than light. Much of the discussion has revolved around a simplistic question: Does Gambian law now entitle a wife to half of her husband’s property simply because they were married?
The answer is plainly no.
Justice Jaiteh did not hold that every asset acquired during marriage is automatically subject to a fifty-fifty division. In that respect, Sarjo Barrow Esq’s recent opinion piece is correct. The Court found that the Tujereng property was matrimonial property “derived from the marriage” and that the wife had made substantial contributions to its acquisition and development. Her entitlement arose from those findings, not merely from the existence of a marriage.
Yet while the opinion piece succeeds in correcting some public misconceptions, it leaves several critical questions unanswered. More importantly, both the judgment and the opinion reveal deeper structural problems within section 43 of the Women’s Act itself.
The real controversy is not whether the wife deserved a share of the property. The real controversy is whether Gambian law clearly defines when property becomes matrimonial property, how contributions should be measured, and how section 43 interacts with Islamic personal law in a predominantly Muslim country.
The Opinion Letter’s Contradiction
The central argument of the opinion piece is that Gambian law is contribution-based rather than status-based. According to the author, a spouse receives a share because of what she can prove she contributed, not because she is married.
That argument appears persuasive until one considers the 2021 amendment to section 43.
The amendment specifically requires courts to consider:
“contributions made by a woman in raising and caring for the family throughout the marriage.”
This provision was enacted precisely because many contributions within marriage are not financial.
Childcare leaves no receipt.
Cooking leaves no invoice.
Managing a household generates no bank statement.
The amendment appears designed to ensure that such contributions are not legally invisible. Yet the opinion simultaneously suggests that a spouse must prove her contribution through receipts, witnesses, or traceable involvement.
This creates a tension that the opinion never resolves.
If domestic labour counts as contribution, and most spouses contribute domestic labour, then the distinction between marriage and contribution becomes increasingly difficult to maintain.
The opinion therefore, understates the significance of the amendment and overstates the certainty of the contribution principle.
The Judgment’s Strengths
The judgment deserves credit for several important developments.
First, it correctly rejected the notion that ownership is determined solely by legal title.
Second, it recognised that contributions can be both financial and non-financial.
Third, it acknowledged that marriages often operate as economic partnerships rather than purely commercial relationships.
These are important principles.
Few would seriously argue that a spouse who dedicates years to raising children, maintaining a household, and supporting family life contributes nothing to the accumulation of family wealth. In that respect, the judgment reflects a more realistic understanding of family life.
The Judgment’s Weaknesses
The judgment nevertheless raises several concerns. Most notably, the Court provided a compelling explanation for why the Plaintiff was entitled to a share, but a less compelling explanation for why that share should be exactly fifty percent.
There is a significant difference between proving entitlement to an interest and proving entitlement to half. The Court found that the wife made substantial contributions.
What it did not fully explain was why those contributions necessarily translated into equal ownership.
A second concern is the Court’s heavy reliance on English authorities such as Gissing v Gissing, Grant v Edwards, Eves v Eves, and Stack v Dowden.
These cases emerged from a legal system built upon sophisticated trust law doctrines.
Once Parliament enacted section 43, a legitimate question arises as to whether Gambian courts should continue relying so heavily upon imported equitable principles rather than developing a distinct statutory jurisprudence.
Most importantly, the judgment contains language that may have consequences beyond the facts of this particular dispute.
The Court repeatedly emphasised that matrimonial property rights are not determined solely by who paid and that marriages function as economic partnerships.
While those statements may be correct in principle, they raise difficult questions when applied to different factual scenarios.
The Real Problem with Section 43
The greatest weakness lies not in the judgment or the opinion piece but in the legislation itself. Section 43 fails to clearly distinguish between jointly created wealth and individually created wealth.
Consider two scenarios.
In the first scenario, a husband and wife jointly build a house. Both contribute money. Both contribute labour. Both make sacrifices to finance construction.
Most people would agree that such property should be shared.
Now consider a second scenario.
A husband and wife both work full-time. They contribute equally to rent, food, utilities, and other household expenses. They also share chores and domestic responsibilities equally. As some women argue that women do not belong in the kitchen and should not be expected to take on traditional domestic roles, both partners share household responsibilities fairly.
The wife spends most of her disposable income on partying, from one christening and wedding to another, as well as on December gala dinners and fashionable dresses.
The husband chooses to save his disposable income over many years.
Eventually, the husband purchases a house entirely from his own savings.
The family later moves into the house.
Years later, the marriage ends.
Should the wife have a claim to that property?
The Women’s Act provides no clear answer.
The phrase:
“joint property derived from the marriage”
is ambiguous.
One judge could reasonably conclude that the house was derived from the marriage because it became the family home and because both spouses contributed to maintaining the household.
Another judge could reasonably conclude that the house was derived from the husband’s personal savings and therefore remains his separate property.
Both interpretations are plausible. That uncertainty is the real problem.
Why Some Critics Are Concerned
The concern is not necessarily what Justice Jaiteh decided. The concern is what future courts might do with the reasoning. A future court relying heavily upon the judgment’s emphasis on economic partnership could conclude that a house purchased entirely by one spouse becomes matrimonial property simply because it later serves as the family home.
That possibility creates uncertainty for spouses attempting to plan their financial affairs. Critics are therefore less concerned with the result of this particular case and more concerned with the broader principles it articulated.
The Question Neither the Judgment Nor the Opinion Letter Addresses
There is an even more fundamental issue.
Before determining whether the Plaintiff was entitled to a fifty-percent equitable interest, should the Court first have determined the applicable personal law governing the marriage?
This question is especially important in The Gambia, where approximately 95 percent of the population is Muslim and where the Constitution recognizes Islamic personal law in matters relating to marriage, divorce, and inheritance.
Yet neither the judgment nor the opinion letter meaningfully addresses three critical questions:
1. Was this marriage governed by Islamic personal law?
2. What Islamic personal law principles apply to property acquired during marriage?
3. Does section 43 modify or displace those principles?
These are not minor issues, they go directly to the legal framework that should govern the dispute. Traditionally, Islamic law recognises separate proprietary ownership between spouses. A husband owns what he acquires. A wife owns what she acquires. Marriage itself does not automatically merge property rights. A wife may acquire an interest through contribution, agreement, partnership, or other recognised legal mechanisms. But ownership is not ordinarily presumed simply because a marriage exists.
Whether one agrees with those principles is not the point.
The question is whether the Court should have considered them before relying upon English equitable doctrines and section 43. Neither the judgment nor the opinion piece provides a satisfactory answer.
The Polygamy Problem
The ambiguity becomes even more obvious when one considers a polygamous marriage. Suppose a man has three wives.
The first wife marries him when he is poor and helps him build a business.
Several years later he becomes wealthy.
He then marries a second wife.
Years later he marries a third wife.
During these marriages, he purchases a large family compound solely from his earnings.
All three wives reside there at various times.
The marriages eventually dissolve.
How should section 43 apply?
Is each wife entitled to fifty percent?
If not, how should the shares be calculated?
Should the first wife receive more because she contributed during the difficult years?
Should the third wife receive less because much of the wealth existed before she entered the marriage?
Should entitlement depend, upon contribution, duration of marriage, domestic labour, or some combination of all three?
The Act provides no answer.
The judgment provides no answer.
Yet these questions are not academic. They arise naturally in a legal system operating within a predominantly Muslim society where polygamous marriages remain lawful and socially recognises. A legal framework that functions in a monogamous marriage may produce serious difficulties when applied to multiple spouses.
What Would Be the Fairer Rule?
Many jurisdictions address these problems by distinguishing between separate property and matrimonial property.
Separate property generally includes:
• inherited property;
• gifts;
• pre-marital assets;
• property acquired exclusively through personal savings.
Matrimonial property generally includes:
• property acquired through joint efforts;
• jointly financed assets;
• family businesses;
• assets accumulated through the economic partnership of marriage.
Under such a framework, the husband in the savings hypothetical would retain ownership of the house because it was acquired through his exclusive savings. However, if the wife later contributed through renovations, mortgage payments, maintenance, childcare, or other contributions that enabled continued ownership, she could acquire a proportionate equitable interest.
Such a system avoids two extremes.
It avoids the notion that marriage automatically creates equal ownership.
It also avoids the notion that only direct financial contributions matter.
It recognises marriage as a partnership without destroying individual property rights.
Conclusion
The debate surrounding Mariama Jammeh v Pa Famara Sanyang exposes deeper structural problems within our legal system that extend far beyond the facts of the case itself. The opinion piece correctly rejects the slogan of “married therefore half,” but it understates the significance of domestic labour and the implications of the 2021 amendment.
The judgment properly recognises equitable interests beyond legal title, but it leaves important questions unanswered regarding equal division, separate property, and the relationship between statutory rights and equitable principles. Most importantly, neither the judgment nor the opinion confronts the constitutional and Islamic personal law issues that inevitably arise in a predominantly Muslim country.
The central challenge is not determining whether marriage alone creates ownership. It is determining when individual property becomes property “derived from the marriage,” how that concept should operate within a Muslim-majority society, and whether Parliament has provided sufficiently clear guidance to courts. At present, those questions remain unresolved.
Until Parliament or the appellate courts address them, matrimonial property disputes in The Gambia will continue to generate uncertainty, controversy, and inconsistent outcomes.
