AN OVERVIEW OF STATUTORY MARRIAGE IN NIGERIA.
A STATUTORY MARRIAGE (OFTEN CALLED COURT MARRIAGE) IN NIGERIA IS A UNION OF A MAN AND WOMAN AS DEFINED BY THE MARRIAGE ACT.
Marriage can be defined as a legally and socially sanctioned union between a man and a woman, that is regulated by laws, rules, customs, beliefs, and attitudes that prescribe the rights and duties of the partners and accords status to their offspring (if any). It can also be defined as the legal union of a man and woman as husband and wife usually entailing legal obligations of each person to the other. Lord Penzance in Hyde v. Hyde had defined marriage statutorily as
"The voluntary union for life of one man and one woman to the exclusion of all others.”
Sections 3(1) (d) of Matrimonial Causes Act Cap 220 LFN 1990, provides thus:
"Subject to the provision of this section, a marriage that takes place after the commencement of this Decree is void in any of the following cases but not otherwise, that is to say, where the consent of either of the parties is not a real consent because:
I. it was obtained by duress or fraud or;
II. that the party is mistaken as to identity of the other party, or as to the nature of the ceremony performed; or
III. that the party is mentally incapable of understanding the nature of the marriage contract; ..."
The Marriage Act (2004) is the primary legislation that provides for the celebration of marriage in Nigeria. The only form of marriage recognized in Nigeria under the Act is monogamous marriage (marriage between one man and one woman).
ESSENTIAL REQUIREMENTS OF MARRIAGES:
Essential requirements are provided for under the Matrimonial Causes Act 1990 and are briefly summarized below:
1. CONSENT OF THE PARTIES:
As stated earlier, marriage must be conducted between a man and a woman who have on their own freewill decided to be married. A marriage conducted in the absence of the voluntariness of either of both parties is one in which consent was obtained either by fraud, misrepresentation, threat, mistake as to identity of nature of the ceremony or the person is affected by unsoundness of mind maintained in Section 3(d) of Matrimonial Causes Act Cap 220 LFN, 1990. Therefore, it is very important to note that the (voluntary) consent of the parties is a pre-requisite for conducting a valid marriage.
2. PARTIES TO THE MARRIAGE:
The parties to this marriage must not be within the prohibited degrees of affinity (relationship through marriage) or consanguinity (blood relationship). Marriage of a man is prohibited if the woman is, or has been his: ancestress, Wife's mother, wife's grand-mother, wife's Descendant daughter, wife's son's daughter, wife's Sister, daughter's daughter, father's wife, Fathers sister, grandfather's wife, son's wife, Brother's daughter, Sister's daughter or any blood relation at all. On the other hand, Marriage of a woman is prohibited if the man is, or has been her: Ancestor, Descendant's brother, father's brother, mother's brother, brother's son, sister's son. Husband's father, husband's grand-father, husband's son, husband's daughter's son, mother's husband, grandmother's husband, daughter's husband, daughter's husband. For purposes of observance of this provision, it is immaterial that the relationship is of the whole blood or half-blood, or whether it is traced through any person of illegitimate birth. Under Section 4 of the Matrimonial Causes Act, 1970, the law enables two persons within the degree of affinity to get married if they so wish after application must have been made to a Judge, who will consider the circumstances, and where permissible, grant them special dispensation to marry themselves. The points to be considered by the Judge must be "special circumstances" that will justify the grant of such permission.
3. MARITAL STATUS OF THE PARTIES:
Neither of the parties must be a spouse in a subsisting marriage. This means that any party to a subsisting marriage lacks the capacity to contract a fresh marriage without first dissolving the initial one conclusively. Even a party who has obtained a Decree Nisi (a temporary dissolution, which becomes absolute after three months) cannot contract a fresh marriage with another party unless and until the Decree Nisi becomes a Decree Absolute. Violation of this provision will not only nullify the marriage but also attract criminal liability against the parties; meaning that if tried and convicted, they are liable to a term of imprisonment for seven years (by virtue of Section 370 of the Criminal Code) a term of five years imprisonment (by virtue of Sections 35 and 38 of the Marriage Act). The following people can contract a valid statutory law marriage in compliance with Section 3(1) (a) of the Matrimonial Causes Act, 1970:
a) Persons who are not married to a third party either under the Marriage Act or under the customary law.
b) Persons who, having been previously married under the Marriage Act have obtained valid decrees of divorce; and
c) In the case of a subsisting customary law marriage, the parties thereto so long as the statutory marriage is between them. (Note that if the subsequent marriage is between one of the parties to the customary law marriage and a third party then it is illegal).
4. AGE OF THE PARTIES:
Once the person or persons are below marriageable age, the marriage is void. Although section 3(1) (e) of Matrimonial Causes Act, as well as the Marriage Act did not give any age as the marriageable age, Professor Sagay (1999), holds the view that it is generally believed to be the age of 16, which was the marriage age under the applicable English Law before the Matrimonial Causes Act was promulgated in 1970. To salvage the confusion created by this lacuna, the common law ages of 12 and 14 for boys and girls respectively have been used.
5. WRITTEN CONSENT OF THE FATHER:
Written consent of the father is relevant only where either of the parties to a statutory marriage, not being a widower or widow is below the age of twenty-one years. But where the father is dead or of unsound mind or totally absent from Nigeria, that of the mother is acceptable and where the mother is also dead or of unsound mind or totally absent from Nigeria, then, the consent of the guardian will suffice.
A statutory marriage (often called court marriage) in Nigeria is a union of a man and woman as defined by the Marriage Act. The Marriage Act is not the exclusive law governing statutory marriage and its validity in Nigeria. Section 3 and 5 of the Matrimonial Causes Act LFN 1990 also provides instances where a marriage could become void or voidable under Nigerian law. Such instances may include where the consent of one of the parties to the marriage was obtained by duress or fraud, or a party is mistaken as to the identity of the other party or the nature of the ceremony performed.
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WRITTEN BY CHAMAN LAW FIRM TEAM
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