Understanding Statutory and Customary Marriages under the Marriage Act: Essential Requirements and Legal Implications

Marriage is defined according to the Marriage Act as “the union of one man and one woman to the exclusion of all others”.

The Act recognizes two types of marriage namely;

1)     Customary marriage

2)     Statutory marriage, which is marriage under the Act.

CUSTOMARY MARRIAGE

Customary marriage is a form of union recognized under Nigerian law that adheres to the traditions and customs of the community or ethnic group of the parties involved. This type of marriage typically involves various cultural rites and ceremonies, which may include the payment of a bride price, exchange of gifts, and other rituals specific to the community. Customary marriages are often polygamous, allowing a man to have multiple wives. These marriages are governed by customary laws, which vary widely across different ethnic groups in Nigeria.

Essential Requirements of a Customary Marriage

Customary marriage in Nigeria adheres to the traditions and customs of the specific ethnic groups involved. While these practices vary, several common elements are typically required:

·        Consent of the Parties: Both the bride and groom must willingly agree to the marriage.

·        Parental and Family Consent: Approval from both families is essential, reflecting the union of not just the couple but their extended families.

·        Payment of Bride Price: The groom’s family pays a bride price or dowry to the bride’s family, symbolizing commitment and support.

·        Traditional Ceremonies and Rites: Various ceremonies and rituals, specific to each community, must be performed. This often includes an introduction ceremony, engagement ceremony, and the main marriage ceremony.

·        Witnesses: The presence of family members, elders, and community leaders serves to validate the marriage.

·        Prohibited Degrees of Relationship: Customary laws prevent marriages between close relatives to avoid incestuous unions.

 

STATUTORY MARRIAGE

Statutory marriage, also known as marriage under the Act, is governed by the Marriage Act of Nigeria. This type of marriage is monogamous, legally defined as the union of one man and one woman to the exclusion of all others. Statutory marriages require adherence to specific legal requirements, including capacity, parental consent (for those under 21), mutual consent of the parties, and compliance with prohibitions against bigamy and certain degrees of consanguinity and affinity. The marriage must be celebrated in a licensed place of worship or a registrar’s office to be considered legally valid. This form of marriage offers legal protections and obligations under Nigerian law.

Essential Requirements of A Statutory Marriage

·     Capacity:  The Act does not specify the actual age or capacity for marriage

·        Parental Consent: This is only in certain cases where if either party to an intended marriage, not being a widower or widow or below 21 years. See Section 18 of the Marriage Act.

·        Consent Of the Parties: Both parties must consent and the consent must be voluntary as stated in S.3(1)(d) of the Matrimonial causes Act. Where consent is obtained by mistake, misrepresentation, duress and undue influence, the element of consent stands negated and renders the marriage void for lack of consent.

·        Marriage Must Be Lawful: The marriage frowns at bigamy.

·        Prohibited Degree of Consanguinity And Affinity: The law forbids the marriage of persons related by blood or by marriage.

·        Matrimonial causes Act and Marriage Act also forbids marriage to persons of same sex.

 

VOID MARRIAGES

 

Existing Lawful Marriage

The Matrimonial Causes Act 1970 lays down grounds which may make a marriage void ab initio. By Section 3(1) (a) of the Matrimonial Causes Act of 1970, where either of the parties to a marriage is at the Time of its celebration lawfully married to some other persons, such Marriage is null and void. The instances where this may arise are:

 

a. Where customary law marriage precedes a statutory marriage with a different person. See Nwakpele v Nwakpele(1973) 3 UILR 84. This is also dealt with by Section 33(1) of the Marriage Act, which provides that:

 

No marriage in Nigeria shall be valid where either of the parties thereto at the time of the celebration of such marriage is married by native law or custom to any person other than the person whom such marriage is had. To invalidate a marriage celebrated under the Marriage Act on the ground of a previous marriage under customary law, the previous

marriage must be proved with a high degree of certainty. Osamwonyi v Osamwoyi(1972) IO SC .

 

b. Where a person who is married under the Marriage Act purports to contract a customary law marriage with a third party during the subsistence of the first marriage; it is necessary that the subsisting statutory marriage must have been contracted in accordance with the Marriage Act in Nigeria. Any customary law marriage, with a party

such statutory marriage purports to contract subsequently, is null and void.

 

c. Where a person who is a party to a subsisting marriage purports to contract another marriage with a third party either under the Marriage Act or under a foreign marriage law; the position is the same where a person who is married under a monogamous system

abroad attempts to marry a third party in Nigeria under the Marriage Act; in both cases, the subsequent marriage is void ab initio as the person lacks the capacity to contract such marriage during the subsistence of the previous one. S. 33(1) was considered in Oshodi v

Oshodi (1963) 2AllNLR 214, where a wife Folashade petitioned for divorce on the grounds of cruelty and adultery. The respondent contracted a valid marriage in 1954 with one Sikiratu, under Yoruba Islamic Law and Custom pertaining to the Ahmadiya Muslim

Movement in 1955, the respondent and the petitioner were married under the Yoruba native law and custom. The petitioner knew of the 1954 marriage and all three lived together before the petitioner and the respondent left for England. In 1956, the petitioner and the respondent went through the English form of marriage. The respondent contended that the English marriage of 1956 was a nullity and consequently the petitioner was not entitled to the relief sought. The court held that the 1956 marriage was not celebrated in Nigeria and as such Section 33(1) was relevant. However, the correct

approach to problems of marriage under a foreign law should have been through the Conflict of Law rules: capacity to marry is determined by the lex domicilii of the parties. If by that law a person was regarded as a married man he cannot contract a valid

monogamous marriage with another person. The second marriage constitutes the offence of bigamy strictu sensu in Nigerian Law vide Section 370 of the Criminal Code Act and R v Princewill (1963) NNLR 54.

 

Place of Celebration

A marriage under the Marriage Act must be celebrated in a Registrar’s office or licensed place of worship, or a place prescribed with a special license. A marriage celebrated in any place other than these will be void ab initio. See 33(1) (a) of the Marriage Act. So, a marriage will be invalid if celebrated in a church that is not licensed, or in private home

(unless authorised in a special license).In Bello v. Bello the parties went through a form of ceremony of marriage at the Celestial Church of Christ, Queen Elizabeth Road,

Ibadan. The church issued them a certificate of marriage. It was adduced in evidence that the Celestial Church of Christ where the marriage took place was not licensed for the celebration of marriages. Kayode Esho JSP (as he then was) held that the marriage was celebrated in violation of Section 33(2) of the MCA 1970 and therefore void ab

initio under Section 3(1)(c. ) of the A 1970

Proof Of Marriage
Marriage under the act remains valid until voided by parties. Proof of Statutory marriages is through the production of the Marriage Certificate.

 

LEGAL EFFECTS OF MARRIAGE

 

  Contractual Relations between Spouses

At Common Law a wife has no contractual capacity, in relation to third parties. This was due mainly to the principle of the unity of husband and wife and to the fact that a wife could not own her own separate property apart from the husband. Some of the effects of this were that ante-nuptial contracts between a husband and wife became void on their

marriage. They could not enter into contracts with each other after marriage and the woman could not be sued in contract without her husband being joined. This position was radically altered by the Marriage (Women’s Property) Act of 1882, which applies to all the Northern and Eastern States of Nigeria. By the Act, (Sections 1 and 12) a woman was given the same contractual capacity as a man and she could enter into valid contract with anyone.

 

  The Wife’s Authority to Pledge Husband’s Credit

In law, there is the presumption that a wife is an agent of the husband and has the authority to pledge his credit for necessaries in so far as the article falls fairly within the domestic department which is ordinarily confined to the management of the wife. Food item is an obvious example. Since the wife’s authority is a presumed one, it is reputable by evidence to the contrary. If a wife really contracted on her own behalf, the husband will not be liable as principal. Also if the wife has been expressly forbidden to pledge her husband’s credit, he will not be liable.

 

  Cohabitation

One of the primary incidents of consortium is the duty of the spouses to cohabit. This duty is subject to the circumstances of the parties. Cohabitation does not necessarily imply that the husband and wife are living together physically under the same roof. Chwukwuma v Chwukuma (1996) 1NWLR 543. They may be living apart by mutual consent because of the nature of their employment, education or business. Withdrawal from cohabitation without consent may constitute the matrimonial offence of desertion which may arise either from physical withdrawal from the matrimonial home or a general withdrawal from cohabitation even while living under the same roof. See Pulford v

Pulford (1923) P18.

 

  Torts

With regard to torts, the law is uniform throughout the country. No husband or wife can sue the other for a tort. However, a married woman is entitled to bring any action against anyone, including her husband for the protection and security of her property as if she was famine sole. Thus a wife can sue the husband for the recovery of her personal

property detained by him. Thus in the case of Asomugha v. Asomugha (Suit No HD/102/72 Lagos High Court), the husband had instituted a divorce suit against the wife from whom he was living separately. He brought an application for an order for the release to him of his personal effects which were still in the matrimonial home. These included lecture notes, books, clothes shoes, wig and gown, certificate and passport. The

court by Odeanya J (as he then was) held that in spite of the general rule under the Married Women (Property Act) that spouses could not sue each other, by the operation of Section 12 of the Act, the wife could sue the husband for the recovery of her personal property, whilst by section 17, the husband could make the same application. The position is however different with regards to third parties. A married woman can sue and be sued by a third party as if she were famine sole.

 

  Husband and Wife in Criminal Law

A wife is not criminally responsible for an act which she is actually compelled by her husband to do in his presence provided such an act is not an offence punishable by death or one in which the Criminal Code applies. Also, a wife does not become an accessory after the fact by assisting her husband to escape punishment. Similarly, the husband is

not guilty by giving the wife similar assistance. A husband and wife, being one in law cannot be criminally liable for conspiring between themselves alone for the same reason. They cannot be guilty of speaking with each other. Communication between husband and wife is privileged. A spouse cannot be compelled to disclose any communication made to him or her by the other spouse during the marriage. By these provisions, the law ensures that spouses can confide in each other. Where a spouse is charged under specific offences as indicated under the evidence act, the other spouse shall be competent and compellable witness for the prosecution or defense without the consent of the accused spouse.

 

  Mutual Defense

The law confers on every individual the right to use reasonable force as it is necessary to defend himself against an assault. It is lawful for a person to use force in self-defense against an assault and any other person acting in good faith may lawfully use force in aiding the person assaulted. A spouse may use such force as is necessary in aiding or

defending the other spouse who is assaulted. A spouse may use force if necessary in order to resist actual or unlawful violence threatened to the other spouse in his presence.

 

  Defense of Property

While still living together, neither party can incur any criminal responsibility for interfering with the property of the other. A party can freely dispose of his or her individually owned property. Neither party can be criminally held responsible for any offence committed against the property of the other unless the guilty party was in desertion or about to desert the other– Section 36 Criminal Code. See also Egunjobi v

Egunjobi (1974) ECNLR 552. However, a husband cannot sue his wife in tort for the protection of his property. Special statutory provisions exist for the settlement of disputes

between husband and wife as to the ownership or possession of property. For this, see Section 17 Married Women’s Property Law and also, Asomugha v Asomugha CCHC/12/72 at 91.

 

 Citizenship

Under the 1999 Constitution of the Federal Republic of Nigeria, a foreigner married to a Nigerian citizen may acquire nationality by registration or naturalisation. A female Nigeria does not lose her Nigerian citizenship merely by marriage to a foreigner but if she by that act acquires a foreign citizenship, she automatically loses her Nigerian

citizenship. Whether a female citizen married to foreigner as a result of the marriage acquires her husband’s nationality or not, will depend on the citizenship laws of his country.

 

  Marriage Celebrated Abroad

The Marriage Act does not provide expressly or by implication for the validity or recognition of monogamous marriages celebrated abroad. Nigerian courts in this wise fall back on contract law rules. By these rules, the Nigerian courts will recognise a monogamous marriage celebrated abroad if it complies with the law of the place of its

celebration as to form and if each of the parties possesses the capacity to marry under the law of his or her antenuptial domicile. A marriage celebrated abroad will be treated as monogamous here if it is recognized by the law of the place where it is contracted as a voluntary union of one man and one woman to the exclusion of all others during the

continuance of the marriage.

 

Customary Law Marriage

 

Consortium

The spouses of a customary law marriage are entitled to each other’s consortium. Customary law requires the cohabitation of the spouses. Each of the spouses is entitled to the company of each other. Under customary law each spouse owes the other a duty to submit to the other’s reasonable sexual demands.

 

Mutual Protection

Customary law recognises the right of mutual protection by the spouses to a customary law marriage. Each spouse is entitled to the assistance of the other in the case of danger to life or limb.

 

Remedies for Interference with Consortium

Unlike English Law, Customary Law has not developed a full range of remedies for interference with the rights of consortium. For example, there is no general right of action for damages for wrongfully inducing a spouse to leave the other. If however, the inducement involves or is accompanied by adultery, damages may be obtained in customary law for adultery. It is important to note that enticement is a common law

concept. The tort of enticement is unknown to customary law and Customary courts have no power to administer common law which includes torts.

 

  Harbouring a Runaway Wife

Under customary law in Nigeria, a husband has a right of action for the recovery of his wife from any person who harbours her without just cause. The right of action may be exercised against her parents’ relations or any other person who harbours her. In Erurhobare v. Orebise (1971)1 UILR 33, the plaintiff’s wife, Omatre, was harboured

without just cause and against the husband’s wish by her parents, the defendants. The plaintiff brought an action against the defendants at the Customary Court in Sapele judicial division for the return of his wife. The court found in favour of the plaintiff and ordered the defendants to return the plaintiff’s wife within two weeks of the date of the order of court. On appeal, Eboh J, upheld the findings of the lower court as being in consonance with the local and applicable customary law.

 

 Damages for Adultery

One of the remedies developed by customary law for interference with consortium is in respect of the commission of adultery with a married woman. In some parts of Nigeria, customary law confers on the husband a right of action for damages against a third party who commits adultery with his wife. The exercise of the right is on the existence of a valid customary law marriage. However, the wife has no correspondent right of action.

In some parts of Nigeria, rather than attract damages, the commission of adultery may constitute a criminal offence. Under Section 387 of the Penal Code, the commission of adultery by a man may be punished by imprisonment. It is to be noted that the section only applies where the adultery is committed by a person subject to a system of customary law under which adultery constitutes a crime. In Esharetori v Okere Suit No. w/29A/66(unreported) both the husband and wife, who were form Agbarho in Ugheli area of Bendel State, were married under customary law. The defendant committed adultery with the wife of the plaintiff. Obaseki, J, held on appeal, that the defendant

was liable under customary law to pay damages to the plaintiff for the adultery.

In conclusion, the institution of marriage in Nigeria, as governed by the Marriage Act, establishes a legal framework that underscores both its sanctity and the responsibilities it entails. Defined as the union of one man and one woman to the exclusion of all others, marriage can be either customary or statutory. The statutory marriage, conducted under the provisions of the Act, requires adherence to several essential requirements: capacity, consent, legality, and prohibitions against certain degrees of kinship and same-sex unions.

Furthermore, the legal landscape recognizes void marriages, such as those involving existing lawful unions or marriages contracted under false pretenses. These provisions ensure the integrity of marital bonds and protect parties from fraudulent or illegal unions.

Moreover, beyond its ceremonial and cultural significance, marriage under Nigerian law confers numerous legal rights and responsibilities upon spouses, affecting aspects ranging from property ownership to mutual protection and obligations under criminal law.

In essence, while the Marriage Act provides a comprehensive legal framework for the solemnization and regulation of marriages in Nigeria, it also underscores the evolving nature of marital law in response to societal shifts and legal interpretations. As such, the Act continues to shape and define the rights and obligations inherent in marriage, reflecting the country’s cultural diversity and legal evolution.

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