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

Marriage, a foundational social institution, is recognized in Nigeria through statutory and customary frameworks. This article explores the essential requirements, legal implications, and unique characteristics of these marriage types as defined under the Marriage Act

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.

 COMPARATIVE ANALYSIS

Aspect	Statutory Marriage	Customary Marriage
Nature	Monogamous	Can be polygamous
Legal Framework	Governed by the Marriage Act	Governed by local customs and traditions
Ceremony Location	Registrar’s office or licensed place of worship	Community or family-based location
Consent	Mutual consent of both parties	Consent of parties and their families

 

VOID MARRIAGES UNDER THE MATRIMONIAL CAUSES ACT

The Matrimonial Causes Act of 1970 outlines specific grounds under which a marriage is deemed void ab initio (from the beginning). These include situations where one or both parties lack the legal capacity to marry, such as:

1. Existing Lawful Marriage:
   If either party is already legally married to another person at the time of the marriage, the subsequent marriage is null and void. This applies whether the earlier marriage was conducted under customary law or statutory law.

1. • Relevant Case: In Nwakpele v Nwakpele (1973), the court invalidated a statutory marriage because one party had a pre-existing customary law marriage with another individual.

2. Bigamy:
   A marriage is void if it violates the prohibition against bigamy under Nigerian law. Bigamy occurs when a person contracts another marriage under statutory law while still being legally married to someone else.
3. Prohibited Degrees of Consanguinity or Affinity:
   Marriages between individuals who are closely related by blood (consanguinity) or by marriage (affinity) are not permitted. For instance, marrying a sibling or a step-parent is prohibited.
4. Improper Consent:
   If the consent of either party was obtained through fraud, mistake, duress, or undue influence, the marriage is considered void. Section 3(1)(d) of the Matrimonial Causes Act emphasizes that voluntary consent is a prerequisite for a valid marriage.
5. Improper Place of Celebration:
   Under Section 33(1)(a) of the Marriage Act, a statutory marriage must be celebrated in a licensed place of worship, a registrar’s office, or another location prescribed with a special license. Marriages conducted outside these authorized locations are invalid.

1. • Relevant Case: In Bello v Bello, a marriage celebrated at an unlicensed church was held void for violating the provisions of the Act.

Examples of Void Marriages

1. Pre-existing Customary Marriage:
   If a person married under customary law subsequently contracts a statutory marriage with a different individual, the statutory marriage is void.

1. • Relevant Case: In Osamwonyi v Osamwoyi (1972), the court required a high degree of certainty to prove the existence of the earlier customary law marriage.

2. Customary Marriage During a Statutory Union:
   A statutory marriage prohibits either party from contracting a customary marriage with a third party during the subsistence of the statutory marriage. Any such customary marriage is void.
3. Foreign Marriages in Conflict with Nigerian Law:
   Marriages conducted abroad are only recognized in Nigeria if they comply with the laws of the place of celebration and the parties’ lex domicilii (law of domicile). If a party lacks the capacity to marry under their domicile law, the marriage is void.

1. • Relevant Case: In Oshodi v Oshodi (1963), the court ruled that a marriage celebrated abroad would be invalid if it conflicted with the parties’ capacity under their domiciliary law.

4. Same-Sex Unions:
   Both the Matrimonial Causes Act and the Marriage Act expressly prohibit same-sex marriages. Any marriage conducted between two individuals of the same sex is void under Nigerian law.

VOIDABLE MARRIAGES UNDER THE ACT

Unlike void marriages, which are deemed invalid from the outset (ab initio), voidable marriages are considered valid until one of the parties takes legal action to annul the marriage. Voidable marriages are governed by the Matrimonial Causes Act and typically arise due to certain defects or conditions existing at the time of the marriage. These marriages remain legally binding unless and until they are annulled by a court.

Grounds for Voidable Marriages

1. Lack of Consummation:
   A marriage may be annulled if it has not been consummated due to:

1. • Incapacity: If one party is physically incapable of consummating the marriage and the incapacity is incurable.
   • Wilful Refusal: If one party intentionally refuses to consummate the marriage.

2. Mental Incapacity:
   If at the time of the marriage, either party was of unsound mind, suffering from a mental disorder, or otherwise incapable of understanding the nature of the marriage contract, the marriage can be annulled. This ensures that both parties have the mental capacity to enter into a valid marital union.
3. Duress or Undue Influence:
   If consent was obtained through coercion, threats, or undue influence, the marriage may be voidable. The Matrimonial Causes Act specifically requires that both parties must enter the marriage willingly. Buckland v Buckland (1968): This case involved duress and reinforced the principle that marriages entered into under threat or undue influence are voidable.
4. Pregnancy by Another Person:
   A marriage can be annulled if, at the time of the marriage, the wife was pregnant by someone other than her husband, and the husband was unaware of the pregnancy. This is to protect the husband’s rights and ensure full disclosure before marriage.
5. Venereal Disease:
   If, at the time of the marriage, one party was suffering from a venereal disease in a communicable form and concealed this fact from the other party, the marriage is voidable. Full disclosure of health conditions is an essential element of trust in marriage.
6. Gender Misrepresentation:
   A marriage can be annulled if one party was unaware of the other party’s gender or if there was a deliberate misrepresentation of gender at the time of the marriage.

Legal Implications of Voidable Marriages

1. Status of the Marriage:
   Voidable marriages are considered valid and binding until a court issues a decree of nullity. Unlike void marriages, they do not automatically invalidate the union.
2. Effect on Children:
   Children born during a voidable marriage are considered legitimate unless a decree of nullity is granted and specifies otherwise.
3. Time Limitations:
   An application to annul a voidable marriage must be made within a reasonable time frame. In some cases, the failure to seek annulment promptly may be interpreted as acceptance of the marriage.
4. Right to Maintenance:
   In some instances, the party seeking annulment may still be entitled to spousal maintenance or financial provisions, depending on the circumstances surrounding the marriage.

Voidable marriages under the Matrimonial Causes Act provide a legal framework to protect parties from circumstances that undermine the validity or fairness of their marital union. Unlike void marriages, they offer the opportunity for resolution or annulment through judicial intervention.

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. 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.

UNDER 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.