VOID AND VOIDABLE MARRIAGES IN NIGERIA
The clear distinction between void and voidable Marriages was stated by Lord Green in De Reneville V.De Reneville (1949) Page 100,111 (C.A.)
VOID AND VOIDABLE MARRIAGES IN NIGERIA
Marriages are generally annulled in Nigeria when parties to a statutory marriage seeks to completely nullify such a marriage based on the fact that the marriage is void or voidable in accordance with the provisions of the statutes, particularly the Marriage Act and the Matrimonial Causes Act.
The court decree is not important to bring the marriage to an end in the case of a void marriage, because in the eyes of the law the parties were never husband and wife. However, in order to clear any iota of doubt, a decree that simply declares the existing fact that there has never been a marriage may be obtained in respect of a void marriage.
The clear distinction between void and voidable Marriages was stated by Lord Green in De Reneville V.De Reneville (1949) Page 100,111 (C.A.) thus:
"A void marriage is one that will be regarded by every court in any case in which the existence of the marriage is in issue as never having taken place and can be so treated by both parties to it without the necessity of any Decree annulling it; A voidable marriage is one that will be regarded by every court as a valid subsisting marriage until a Decree annulling it has been pronounced by a Court of competent jurisdiction."
In Nigeria, the annulment of marriage may be alleged by any person but where the marriage is voidable only one of the spouses can do so because until it is annulled the marriage is valid.
The principal law regulating matrimonial matters in Nigeria is the Matrimonial Causes Act, 1970 (the Act). The annulment of marriage is not to be mistaken to mean divorce. Some of the distinctions between an annulment of marriage and dissolution of marriage will be briefly highlighted below:
GROUNDS ON WHICH MARRIAGE MAY BE VOID
According to Section 3 of the Act, the grounds on which a marriage celebrated after the commencement of the Act may be void are:
Existence of a Lawful Marriage
Where either of the parties to a marriage is at the time of the marriage lawfully married to another person such marriage will be null and void. Even where a customary law marriage precedes a statutory marriage with a different person, the marriage will still be null and void. Section 33 (1) Matrimonial Causes Act 1970 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 person other than the person with whom such marriage is had."
The marriage under this subsection must be proved with a high degree of certainty to invalidate the marriage on the ground of a previous marriage under customary law. NB: Where the same parties to a subsisting customary marriage contract a subsequent statutory marriage, the marriage shall not be void.
Prohibited Degrees of Consanguinity/Affinity
Where a marriage celebrated by parties is within prohibited degrees of consanguinity or affinity the marriage will be void. Consanguinity is a marriage contracted between parties who are related by blood, while affinity is the marriage of a man with a person to whom he is related through marriage. The prohibited degrees of marriage were specified with in Section 3, First Schedule and Section 115(1) of the Matrimonial Causes Act 1970.
Invalidity by the Law of the place of Celebration
Marriage could be annulled in Nigeria by reason of failure to comply with the form prescribed by the lex loci celebrationis. This provided for by Section 3 (1) (c) of the Matrimonial Causes Act 1970.
Place of celebration
A marriage under the Act must be celebrated either by a recognized minister of some religious denomination or body or by a Registrar of marriages. Failure to comply with the requirement makes the marriage void ab initio
Failure to Obtain Consent
Where neither of the parties to marriage consents freely to the union, the marriage is invalidated.
Factors that negate consent are:
Fraud or Duress
Voidable marriage is made void at the instance of one of the parties to the marriage. In a voidable marriage, only the court can pronounce that the marriage is void and subsequently nullify it. Unlike in a void marriage where any interested party can petition for a void marriage upon the death of one of the parties to the marriage, in voidable marriage, it cannot be questioned by any third party because the marriage was valid till the death of the other spouse and subsisting marriage.
GROUNDS ON WHICH MARRIAGE IS VOIDABLE
Incapacity to Consummate Marriage
According to Section 5 (1) (a) of the Matrimonial Causes Act 1970, where either of the parties to a marriage is incapable of consummating the marriage, that is one of the parties is impotent the marriage is voidable.
It is noteworthy here to explain the difference between Impotency and Sterility, in that the latter refers to the incapacity to procreate children while the formal is one who is incapable of having normal sexual relations. Where sexual relations are partial or imperfect there will be no consummation. The use of contraception or the practice of coitus interuptus amount to consummation as held in the case of Baxter V. Baxter (1948) A.C.274 ·
Unsoundness of Mind, Mental Disorder and Epilepsy
A marriage is voidable going by section 5 (1) (b) of the Act, if at the time of its celebration one of the parties was of unsound mind or a mental defective, or subject to recurrent attacks of insanity or epilepsy.
If any of this mental deficiency arose only after the marriage it will not void the marriage. The unsoundness of mind need not be absolute idiocy but could be a weakness of the mind.
A spouse who is of unsound mind or mental defect is regarded by the law as being incapable of carrying on a normal marital life. The other party to the marriage is allowed to petition for the nullity of the marriage. Where a spouse is at the time of the marriage subject to recurrent attacks of insanity or epilepsy, the marriage will be voidable. The marriage will not be declared voidable at the petition of the party suffering from mental deficiency or epilepsy.
Under Section 5 (1) (c) of the Matrimonial Causes Act 1970, the marriage is voidable where at the time of its celebration either party was suffering from a venereal disease in a communicable form. If it cannot be shown that the party in question was suffering from the disease at the time of the marriage, the disease would not constitute a ground for nullity.
Pregnancy of the Wife by a Person Other Than the Husband
According to section 5 (1) (d) of the Act, where at the time the marriage was celebrated the wife was pregnant by a person other than the husband, the marriage will be voidable at the instance of the husband. By virtue of Section 35 (c) of the Act, the wife so pregnant cannot obtain a decree of nullity on the ground of her pregnancy. But where the petitioner had knowledge of the pregnancy at the time of the marriage as this would amount to an approbation of that.
In conclusion, intending couple or existing couple should make sure that they have full knowledge of the relationship they want to venture in, because the Court will refuse a decree where any of the party with full knowledge of the fact and without just cause allows his right to lapse.
Family Law in Nigeria - E. I. Nwogugu
Matrimonial Causes Act 1970
Marriage Act 2004
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