Did you know that many localities in contemporary Nigeria still construe a valid marriage to mean the living together of a man and a women with the ultimate objective of procreation? Quite a misconception, as such relationship is but mere Cohabitation in the eyes of the law, regardless of the duration, or the number of children given birth to.
Under the Nigerian Law however, two types of marriages are recognized and accepted. They are:
1. Traditional/ Customary Marriage;
2. Statutory Marriage:
The principal legislations regulating statutory marriages in Nigeria are:
- The Marriage Act Cap 218, Laws of the Federation of Nigeria, 1990; (hereinunder referred to as “the Act”);
- The Matrimonial Causes Act Cap M7, Laws of the Federation of Nigeria, 2004.
Traditional/ Customary Marriage.
Here, a wedding ceremony is conducted in accordance with the customs of the bride and groom’s families. In Nigeria this could involve the paying of bride price, giving of gifts, etc. This kind of marriage ceremony is valid and subsists. Any subsequent marriage of either of the parties to someone else other than the same party involved in the first valid marriage is void.
This is one conducted in accordance with the Act. The first step is to give notice of the impending marriage to the Marriage Registrar in the Local Government where the marriage will be conducted. The Registrar of marriages would then cause the notice to be published on the door of his/her office and also on the notice board of the Local Government Area.
This notice must be published for at least 21 days and during that period anyone who has an objection to the marriage is free to make an objection by registering this objection with the Registrar, and after the expiration of 21 days from the day of publication of notice, the Registrar will issue a “Registrar’s certificate” to the intending couple. The Registrar’s certificate is proof that notice of the marriage has been given devoid of objections, and the intending couple are free to solemnize the marriage.
The marriage can then be solemnized at a registered place of worship (church/mosque), or at the Registrar’s office. If the marriage is solemnized in a licensed place of worship, it must be done under the supervision of registered clergy of the religious body (church/mosque). It is worthy to note that not all churches/mosques are licensed places for celebration of marriages.
In addition, the solemnization must be done within 3 months of the issuance of the certificate by the Registrar. If the marriage is not celebrated within that 3-month period, all notices and certificate will become void and, the entire process has to be started all over again.
The final step is the signing of the marriage certificate. This must be done by the couple and be witnessed by 2 people and the officiant (the person conducting the marriage ceremony). The duplicate must be sent to the Registrar of Marriages within seven (7) days after the celebration of marriage. Once all the steps are followed, it becomes a valid marriage under the Act.
Factors that Bar the Validity of Marriage in Nigeria.
Certain factors however, may bar the validity of a marriage in Nigeria no matter how judiciously conducted. These factors include:
Under the Act, either of the parties must have passed the minority age (18 and below). Section 18 of the Marriage Act provides 21 years and above. If there is need for unionism between parties below 21 years of age, parents consent will be sought.
2. Parental Consent:
This is only in certain cases where if either party to an intended marriage, not being a widower or widow is below the age of 21.
3. Consent of the Parties:
Both parties must voluntarily consent as is the position in S.3(1)(d) of the Matrimonial Causes Act. Consent obtained by mistake, misrepresentation, duress and undue influence renders the marriage void.
4. It must be conducted in a licensed place of worship or in a court registry.
5. Either party must not at the time of the marriage be married to someone else under Customary law.
6. Marriage conducted under a false name or names.
7. Marriage conducted without a registrar’s certificate of notice or licence issued under section 13 of the Marriage Act.
8. Marriage conducted by a person not being a recognized minister of some licensed religious denomination or body or a Registrar of marriages.
9. Prohibited Degree of Consanguinity and affinity: The law frowns at the marriage of persons related by blood- consanguinity (e.g brother and sister, father and daughter); or related by marriage- affinity (e.g step father and daughter).
Thus, for Statutory marriage to be valid, all the provisions of the Act must be complied with. Same level of compliance is required in Customary marriage, as all rules and customs of respective communities must be adhered to diligently.
The Validity or otherwise of Marriage Celebrated Abroad.
Ordinarily, Nigerian Courts recognise statutory marriages contracted in Nigeria. However, Section 49 of the Act provides the conditions in which Nigerian courts will recognise a foreign statutory marriage thus:
“Subject to sections 50 to 53 of this Act, a marriage between parties one of whom is a citizen of Nigeria, if it is contracted in a country outside Nigeria before a marriage officer in his office, shall be valid in law as if it had been contracted in Nigeria before a registrar in the registrar’s office.”
The conditions stipulated in Sections 50 to 53 of the Act are that for such marriage to be recognized and valid under Nigerian law, such a marriage must have been contracted before a Nigerian Diplomat or Consular office of the rank of Secretary or above, at his office. The Act shall apply in relation to a marriage contracted before a marriage officer as though it was contracted before a marriage registrar in Nigeria.
More so, since Nigeria is a common law country, common law rules on recognition of foreign marriages on the basis of the law of the place (lex loci) where the marriage was celebrated applies. This position is supported by Section 3(1) (c) of the Act. The Section provides that a marriage will be declared void if it is not a valid marriage under the law of the place where the marriage was celebrated, by reason of failure to comply with the requirements of the law of that place with respect to the form of solemnization of marriages. Therefore, marriages which are validly contracted in the place of celebration will be recognized in Nigeria and shall confer jurisdiction on Nigerian Courts.
Consequently, upon presentation of a certificate of marriage duly certified by the registrar of a foreign district, such certificate shall be admissible as evidence of the marriage by Nigerian courts. This position is supported by Section 32 of the Act.
Here is a poser for you:
CAN CUSTOMARY/TRADITIONAL MARRIAGE AND STATUTORY MARRIAGE SURVIVE DISJUNCTIVELY?
In other words, can parties decide to do on one and jettison the other? Keep up with us at streetlawyernaija to find out soon.
Thank you for reading.
Written by Desmond Otikpa