By Sarjo Barrow, Esq.
The Gambia is predominantly Muslim, with 96.4% of the population. Perhaps this explains the reaction of many men to a recent High Court ruling on the division of property between spouses after divorce. Critics raised the alarm about fairness: how can one spouse buy a property with his “own” money and then be forced to share it with his wife? Before I get to that, let me set a few things straight. One caveat at the outset: the analysis and the judgment that follow hold where the marriage is a civil one—that is, a marriage not falling within the constitutional exception in section 7(f) of the 1997 Constitution, which reserves matters of marriage, divorce, and inheritance among Muslims to the Sharia.
Contrary to widespread reporting and analysis in many online media, Justice Jaiteh never held that any property acquired during a marriage is subject to a 50/50 split. Nor is that the current law of the land under the Women’s Act. So what did the court hold? In simple terms, it held that the house at Tujereng was matrimonial property derived from the marriage, and that the wife had made a real and substantial contribution to its construction; she was therefore entitled to an equitable share, which, on these facts, came to one-half. The Court’s reasoning is set out below to clear up the confusion.
With a little history, one will understand why Section 43 is worded so carefully. Under the English common law we inherited, a married woman could not own property in her own name; in the eyes of the law, she disappeared into her husband. England corrected that injustice through its Married Women’s Property Acts of 1870 and 1882. Yet the Gambia decided to take on the disability. Still, not the cure, keeping a rule England had already abandoned until our own reforms—the 1997 Constitution and the Women’s Act of 2010—finally arrived. The Act was meant to undo that old disability: to give a wife the capacity to own, and to let her share in what the marriage built. But the capacity to own is not automatic ownership. The Act opens the door; it does not hand over the keys.
And this holds in the judgment. The judgment does not say that a wife is entitled to half of whatever her husband buys during their marriage. It does not turn a marriage certificate into a title deed over his wallet. The entitlement rested on two findings, not one: that the property was derived from the marriage, and that the wife had contributed to it.
Without careful or close reading, even a lawyer can confuse the law or misunderstand the judgment. Section 43(4) of the Women’s Act does not speak of “property acquired during the marriage.” It speaks of “the joint property derived from the marriage.” Those are not the same thing. “Acquired during” is about timing—when something was bought. “Derived from” is about the source—how it came to be. A car that a husband inherits from his father in the third year of marriage was acquired during the marriage, but it was not derived from it. The Act focuses on the source, not the calendar.
How is a court to tell whether property is derived from a marriage? The Act answers that too. Section 43(5) directs the judge to weigh property built by the joint industry of the spouses, a wife’s contributions to improving property, and her contributions in raising and caring for the family. Every one of those is a measure of contribution. Contribution—not the date of purchase, and not the name on the paper—is the gateway.
That is where Justice Jaiteh’s reasoning is centered. He did not ask “were they married when the house went up?” and stop there. He found that the wife processed the documentation, put in money, and helped supervise the construction through a credible witness, who described the place as “the house of [wife] and [husband].” The husband himself admitted it “was supposed to be a home.”
On that evidence, the house had been built by the joint life of the marriage, and her hand in it was substantial, not incidental.
Therefore, if anyone still thinks the court handed out halves on the strength of a marriage, look at what the wife lost. She claimed D286,000 for Kasumai Park; the court dismissed it because she couldn’t prove contribution. She claimed D150,000 in costs; dismissed too, for want of proof.
Unlike the Gambia, in the United States, marital property law often begins with a status rule. If a couple buys or builds something during marriage, it is treated as marital property, no matter whose name is on the paperwork or who paid. A divorce, therefore, begins from “this is shared” and works toward a split—fifty-fifty in community-property states, or according to contribution and fairness in equitable-distribution states.
The Gambia runs the other way. America gives a spouse a share for who she is; Gambia gives her a share for what she can prove she did. That is exactly why the wife had to prove her contribution—and why, on other facts, she might have walked away with nothing.
The principle even reaches property a husband owned before the marriage. Section 43(5) tells the court to weigh a wife’s contributions to “developing or improving property acquired before marriage.” But reaching such property is not the same as splitting it. Her share is what she actually contributed—not a flat half of something that existed before she arrived.
So the real holding is narrower and far more careful than the headlines circulating suggest. The law of The Gambia does not say “married, therefore half.” It says: show that the property was built by the joint life of the marriage, show your contribution to it—in money, in labor, or in the running of a home—and equity will give you a fair share.
Now picture a different wife: one who stayed home, held the family together, and raised the children, but earned no income and can point to no visible role in buying or building the house. In the United States, her status may be enough. In The Gambia, the law puts the burden on her. If she cannot produce receipts, witnesses, or traceable involvement, she may walk away with little to nothing after years of building a home. That is the trap. A contribution rule rewards the spouse who can document her work, while quietly failing the one whose contribution was real but invisible. That is where the National Assembly ought to step in.
The fair question is not whether the wife deserved a share, but why she received half. On that point, the judge was on firm ground: because the property’s value was unproven, he awarded half the equity rather than a fixed sum. Her other claims failed for the simplest reason in law—she could not prove them.
But justice that depends on kept receipts and a sympathetic judge is no substitute for clear law. The remedy is not complicated: the Assembly could write a presumption into the Women’s Act—that homemaking and the raising of children count as a contribution unless shown otherwise—so a wife need not prove what a homemaking demanded of her. Until it does, the next claimant will remain at the mercy of common-law guesswork rather than a rule she can rely on.
