HOW VALID IS FOREIGN MARRIAGE UNDER THE NIGERIAN LAW
The customary procedure among Nigerians who reside abroad has been to invite their spouses to Nigeria so that the marriage ceremonies can be completed in a Nigerian Marriage Registry.
HOW VALID IS FOREIGN MARRIAGE UNDER THE NIGERIAN LAW
The customary procedure among Nigerians who reside abroad has been to invite their spouses to Nigeria so that the marriage ceremonies can be completed in a Nigerian Marriage Registry. However, given the recent limitations brought on by the global pandemic, people are now wondering if there are any other legal options for partners who want to get married under the Nigerian Marriage Act but reside abroad. Additionally, questions of whether marriages entered into outside of Nigeria or under the legal framework of another nation can be recognised by Nigerian courts and whether such marriages can be lawfully dissolved by Nigerian courts are frequently raised. The answer is given in this little article.
The basis for recognising marriages made outside of Nigeria under Nigerian law as if they had been contracted in Nigeria before a Registrar in the Registrar's office is provided by Section 49 of the Marriage Act, Cap. M6 Laws of the Federation of Nigeria 2004 (the "Act"). According to the section, "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 legal validity of such foreign marriages, however, is dependent on strict adherence to the fundamental requirements as stipulated by sections 50-53 of the Act, which can be summarised as follows:
One of the parties must be a Nigerian citizen.
The Act acknowledges the right of such party to perform a foreign marriage in compliance with the Act's requirements as long as one of the parties to the planned marriage is a Nigerian by birth or naturalisation.
The marriage must have been arranged in front of a Nigerian diplomat or consular official of secretary rank or higher at his place of business:
Any diplomat or consular official with the rank of secretary or higher is recognised by the Act as a marriage officiant and is qualified to perform the marriage.
The marriage must take place in the office of the marriage officer. In this instance, the office that the diplomat or consular officer uses for his regular work as a diplomat or consular officer must be used for the marriage. Therefore, it implies that marriages performed in front of a diplomat or consular official outside of the office where they perform their diplomatic or consular duties are invalid under the Act.
For the purposes of the Marriage Act, the basic procedure of statutory marriage notice and issuance of the registrar's certificate prior to the wedding shall also apply to marriages performed before marriage officers abroad, i.e., the Nigerian diplomat or consular officers in that country, subject, however, to the modifications contained in Section 52 of the Act.
The position of the Marriage Act appears to be clear-cut and well-regulated when a Nigerian citizen is one of the parties to a foreign marriage. Such a foreign marriage must strictly adhere to the Act in order to be recognised as valid.
The common law principle of lex loci celebrations, which means validity on the basis of the law of the place where the marriage was celebrated, is the other basis for the recognition of the validity of foreign marriages in Nigeria, particularly where neither party is a Nigerian or where the marriage was conducted in violation of sections 49 - 53 of the Marriage Act but under the laws of the foreign jurisdiction. The purpose of the regulation is to recognise the legality of foreign unions insofar as they are conducted in accordance with the laws of the nation in which they are celebrated.
Section 3(1)(c) of the Matrimonial Causes Act Cap M7 Laws of the Federation of Nigeria 2004, which states that a foreign marriage is valid except that the marriage is not valid under the law of the place where the marriage takes place due to a failure to comply with the requirements of that place with respect to the form of solemnization of marriages, gives credence to this common law rule. Therefore, Nigeria will recognise marriages that were lawfully consummated in the nation in which they occurred.
However, only domicile can grant Nigerian courts jurisdiction over matrimonial cases (including those resulting from unions entered outside outside of Nigeria). The Matrimonial Causes Act's Section 2(3) states;
'For the avoidance of doubt it is hereby declared that a person domiciled in any State of the Federation is domiciled in Nigeria for the purpose of this Act and may institute proceedings under this Act in the High Court of any State whether or not he is domiciled in that particular State.'
The place where a person is physically present and considers their home is known as their domicile. The Matrimonial Causes Act's Section 7 stipulates that;
'A deserted wife who was domiciled in Nigeria either immediately before her marriage or immediately before the desertion shall be deemed to be domiciled in Nigeria;
A wife who is residing in Nigeria at the time legal action is initiated under this Act and has done so for the three years immediately before that date is considered to have her residence in Nigeria.
Thus, Nigerian courts would not have the authority to hear a petition from a party who got married outside of Nigeria but hadn't lived there before starting legal procedures there. For more information, see Bhojwani v. Bhojwani 6NWLR
While it is challenging to locate many case laws in which Nigerian courts have acknowledged, validated, and even taken action on a marriage certificate obtained in a foreign country, it is equally challenging to locate instances in which the courts have made it clear that they lack the authority to do so. In the case of Bhojwani v. Bhojwani 6NWLR (above), the Nigerian court had a chance, but it was lost because of what happened in the English court before the case could be tried in Nigeria.
In that case, the Singaporean Appellant, who was wed to the Nigerian Respondent in England, moved for divorce in the High Court of Lagos. The parties' marriage was formally celebrated in England in accordance with English Law. On July 27, 1961, the petitioner/appellant was born in Singapore. The respondent was born on May 10, 1963, in Lagos, Nigeria. The petitioner has been running the family business in Nigeria since 1979 as a corporate director.
The respondent filed a request to rule that the High Court of Lagos, or any other High Court in Nigeria for that matter, had jurisdiction to hear the petition for dissolution of marriage since the appellant was not a resident of Nigeria when it was filed on February 6, 1995. According to the trial Court, it possessed jurisdiction. The respondent filed an appeal with the Court of Appeal contesting this decision. The Court of Appeal overturned the trial court's decision and determined that, contrary to what the petitioner stated, the petitioner's residence was in Singapore, not Nigeria.
Before the Supreme Court could hear the appeal from the Appellant, the English Court had heard and decided the Respondent's divorce suit and had issued a decree nisi. Therefore, the Supreme Court determined that it was powerless to direct the trial court to hear the appellant's petition or continue the appeal's hearing.
The court lost the chance to rule on whether a foreign national who lives in Nigeria and is married to a Nigerian woman has acquired the domicil of Nigeria and whether Nigerian courts can legally dissolve a marriage that was entered into or was governed by the laws of a foreign jurisdiction, even though it reiterated the law that domicil is a requirement for eligibility to institute a divorce petition in Nigeria.
While the court reiterated the law that domicil is the condition for eligibility to institute a divorce petition in Nigeria, it lost the opportunity to decide whether a foreign national who resides in Nigeria and who is married to a Nigerian woman has acquired the domicil of Nigeria and also whether the Nigerian courts could validly dissolve a marriage contracted in or under the laws of a foreign jurisdiction.
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