TYPES OF MARRIAGES UNDER NIGERIAN LAW

TYPES OF MARRIAGES UNDER NIGERIAN LAW

Generally, marriage refers to the formal union of a man and a woman, typically recognized by law, by which they become husband and wife. The Free Dictionary defines marriage as the legal union of a man and woman as husband and wife, and in some jurisdictions, between two persons of the same sex, usually entailing legal obligations of each person to the other. The legal concept of marriage has been expanded to include marriage between a man and a man and between a woman and a woman in some jurisdictions but for the purpose of this article, no discussions will be made on it as same sex marriage is illegal in Nigeria. Basically there are three different types of marriage that a man and a woman can contract in Nigeria. They are:

  1. Statutory Marriage
  2. Customary Marriage
  3. Islamic Marriage

Statutory Marriage

This type of marriage is in accordance with the Marriage Act which is a federal legislation which makes provisions for the celebration of marriages in Nigeria. It is clear that the Act is designed only for the celebration of marriage between a man and a woman, and the marriage has to be a monogamous one. A monogamous marriage has been defined in section 18 of the Interpretation Act as follows:

A marriage which is recognized by the law of the place where it is contracted is a voluntary union of one man and one woman to the exclusion of all others during the continuance of the marriage.

Parties will be deemed to have the capacity to marry if they satisfy the marriage Registrar of the following requirements:

  1.         i.            Age

The Marriage Act does not specify any minimum age limit. It merely states that unless a party is a widow or widower, there is need to obtain the written consent of either the parents or guardians where such person is under the age of twenty one years. The Act further provides in section 49 that whoever shall marry or assist any person to marry a minor under the age of twenty one years, not being a widow or widower, shall be liable to imprisonment for two years.

  1.       ii.            Consent

Under statutory marriage, parental consents of both the male and female parties is a legal requirement but only in cases where either or both of the parties are under the age of twenty one years. The Marriage Act is silent in relation to the consent of parties themselves but the Matrimonial Causes Act (MCA), 1970 provides for the ‘real consent’ of the parties, that is, consent obtained without ‘duress or fraud’.

  1.     iii.            Subsisting Marriage

Parties will lack the capacity to embark on a statutory marriage if either of them is already married under the Act to another person and the marriage has not been dissolved by any court of law. Also, section 33 (1) of the Marriage Act 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 other person other than the person with whom such marriage is had. It is therefore clear that unless the Registrar is satisfied that there is no subsisting statutory or customary law marriage on the part of any of the parties wishing to marry under the Act, he shall not issue them with a certificate to marry under the Act.

  1.      iv.            Kindred and Affinity

Persons intending to get married must ensure that there is no impediment of kindred or affinity between them. The list of prohibited degrees of consanguinity and affinity applies to statutory marriages and it is provided in Schedule 1of the MCA. A Registrar will not issue a certificate to marry unless he is satisfied by reason of a sworn affidavit by the parties that there is no such impediment. A marriage between two persons who are within the prohibited degree of consanguinity or affinity is void. Under section 4 of the MCA, where persons are within the prohibited degrees of affinity and desire to marry, they may apply in writing to a Judge for permission to do so and if the Judge is satisfied that there are exceptional circumstances, the Judge may by an order permit the parties to marry one another.

Marriage under the Marriage Act may be celebrated in any licensed place of worship by any recognized Minister of the church, however before the Minister of the church celebrates the marriage, the couple shall have delivered to him the certificate of the Registrar of Marriages or the Registrar’s license authorizing such marriage. Alternatively, the couple may decide to celebrate their marriage in the Registry before a duly licensed Registrar appointed pursuant to the provisions of the Marriage Act.

Customary Marriage                                                                           

There are various ethnic communities in Nigeria and the various ethnic groups have their different marriage customs. There are however some generally accepted customs common to most of them which will be discussed here.

Marriage under customary law creates a relationship not only between a man and woman but also between the two families involved. The wife is regarded by the members of her husband’s family as having been married not solely to her husband but into the family and therefore a member of their family. The husband on the other hand is not so regarded by his wife’s maiden family, even though there exists a continuing relationship with that family.

Marriage under Customary Law is largely polygamous. A polygamous marriage is the union of one man with several wives. There is no limit to the number of wives a man can marry under customary law. It must be noted however that many couples initially get married under customary law and thereafter marry under the Act. This is valid provided the marriage is between the same persons.  The legal implication of the marriage is that it would have to remain a monogamous marriage. Section 47 of the Marriage Act provides that where a man is married under customary law with one woman and subsequently marries another different woman under the Marriage Act, the second marriage is void.

After intentions to marry has been communicated between the two parties concerned and also between their respective families, discreet inquiries may be carried out by each of the families in order to discover facts about the parties. These facts may sometimes be based on the family’s social and health background as well as the character of the party. For example, investigations may be carried out to find out if the family concerned has any contagious or hereditary disease such as mental illness; whether the person concerned has bad habits such as stealing or lying; or whether the family concerned belongs to the system of outcasts known as Osu (amongst the Ibo’s). Some of the facts found may constitute bars to the proposed marriage.

Generally the following are pre-requisites for a valid customary marriage:

  1. 1.       Betrothal

When the families concerned are convinced that there are no facts that could hinder the marriage, the betrothal, which is the formal engagement of the parties will now take place. The engagement usually consists of a formal process of agreement to marry between the prospective spouses, the giving of consents by their parents or guardians and the giving of gifts (in money and/or kind) by the man to the woman and her family. After the betrothal then actual marriage takes place.

  1. 2.       Capacity of the parties

Most of the customary laws in Nigeria do not prescribe any age for the solemnization of customary-law marriage. This lacuna in the rule of customary law has to a large extent encouraged a high incidence of child marriage, with all its attendant evils. In some areas, child betrothal is rampant but marriage does not in fact take place until the parties have attained the age of puberty. There is no doubt that there were a lot of child marriages under customary law because there was no law against child marriage (most of which occur in the northern part of the country) but since the passing of the Child’s Rights Act 2003, no marriage of persons below the age of eighteen is allowed under Nigerian Law – section 21 of the Act.

  1. 3.       Consent of the parties and parents

The intending couple have to give their consent to a customary marriage. The Supreme Court in the case of Osamwonyi v. Osamwonyi 1973 NMLR 26 held that under Bini Native Law and Customs, the consent of the parties was necessary for a valid marriage under customary law. Parental consent is also necessary before a valid customary marriage can take place.  In Okpanum v. Okpanum 1972 2 ECSLR 561, the High Court of East Central State of Nigeria held that in order to constitute a valid customary marriage, there must be parental consent and mutual agreement between the parties. Furthermore, under section 361 of the Criminal Code Act, it is an offence punishable with seven years imprisonment for any person who with the intent to marry a female person of any age or to cause her to be married by any other person takes her away or detains her against her will.

  1. 4.       Marriage consideration/bride price

Marriage consideration otherwise called bride price is one of the essential requirements of a valid customary marriage. The bride price includes any gift or payment in the form of money, natural produce or any kind of property given by an intending husband and his family to the parents or guardian of a female person on account of the marriage.

  1. 5.       Solemnization of the marriage 

Solemnization or celebration is an essential ingredient of a valid customary law marriage. It generally involves breaking kola, pouring libation, sharing drinks and other activities. The bride is invariably handed over to the bridegroom and his family. In the case of Omoga v. Badejo 1985 NCNLR 1075, the Court held that there must be a formal handing over of the bride to the groom in the presence of the two families and witnesses and the acceptance and taking away of the bride to her husband’s house for marriage under Yoruba Native Law and Custom, to be valid.

  1. 6.       Consummation of the marriage

Consummation of the marriage under Native Law and Custom is essential. Consummation simply means having sex, with a view to making a marriage complete. In traditional societies, the very night of the marriage is eagerly awaited by the groom’s family as he is expected to announce his exploits to his family and state if his wife was found intact or not.

Islamic Law Marriage

Islamic marriage like customary marriage is a polygamous one which allows the man to take up to four wives if he desires. It possesses most of the features of customary law marriage already discussed. The principal requirements of a valid Islamic law marriage are:

  1. a.       Consent of the parties

The parties to Islamic law marriage must freely consent to the union. However, under the Maliki School of Islamic Law, a father has the right to conclude a marriage on behalf of his infant sons and virgin girls. The ceremony is called the Ijbar. The exercise of this right may be ameliorated by the fact that the child has the option to repudiate the marriage contract on the attainment of the age of puberty. However, a father loses his right of Ijbar where he allows his daughter to choose a husband from among her suitors.

  1. b.      Parental consent

As in other systems of customary law, parental consent is necessary for the valid celebration of marriage under Islamic law.

  1. c.       Payment of the Saduquat 

Saduquat (Sadaki) or dower is the bride price received by the parents of the bride to be. It is the entitlement of the woman and not that of her parents, though it is paid through the parents.

  1. d.      Solemnization

The marriage needs to be solemnized by a Mallam in the presence of at least two upright Moslem witnesses.

The very foundation of every just and morally upright society is dependent upon the nature and success of the institution of marriage as reflected in that society. Though the concept and understanding of marriage may differ in different societies as is seen in Nigeria, where the law recognises three distinctly different types of marriages, it is important to note that these differences do not necessarily negate the importance and essence of marriage which is the union between a man and a woman.

Mandyen Brenda Anzaki