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.