There are dissenting views as to whether Bigamy as an offence is still one that can be invoked and given the biting punishment under the law. This school of thought believes that on the average, almost 70 per cent of Nigerian men and about 40 per cent of Nigerian women are guilty of the offence of Bigamy. Since it is an offence punishable by law, it is one that punishment can be invoked when adequate facts and evidence are supplied in proof of same.
It is possible for an aggrieved spouse to set aside a marriage of his or her spouse to another if he or she is apprised of sufficient proof. In this vein, the aggrieved spouse rather than bring a charge of bigamy which if the offending spouse is found to contravene the law may face the sanction under the law which is a term of seven years imprisonment, the aggrieved spouse may in the alternative file a civil suit asking for an order of court to declare the second marriage as void and set it aside.
However, since the law always considers the rights of the complainant, plaintiff or claimant as the case may be, it is also not unaware of the defenses available to the defense. Therefore to exculpate the accused from guilt, he has to prove with sufficient facts and evidence that the first marriage was void abinitio or was a nullity.
In the words of Lord Denning “When an act is void, then it is a nullity. It is not only bad but incurably bad…you cannot put something on nothing and expect it to stay there.”
Furthermore the accused can also plead a presumption of death. Under the Evidence Act, a person is presumed dead when he or she has been missing for a period of not less than seven years and frantic efforts have been made to locate and or find him to no avail. I remembered a scenario where the wife had packed out of the matrimonial home heavily pregnant and back to her parent’s home because the husband fell on hard times. All efforts made by the husband to get back his wife were blatantly refused by the parents. After few years the husband stopped trying after the wife said she was no longer interested in the presence of her parents. The husband thereafter stopped trying and after a period of years, remarried. Years later, the wife suddenly resurfaced with petition filed against the husband particularly challenging the second marriage and court to nullify the marriage. The husband’s defense was that after the incident, he had not heard anything from his first wife for years and that he had in fact moved from the town to escape the shame and humiliation from his first marriage and only got married after ten years of his first marriage. The court ruled in favour of the husband that the wife could be safely presumed dead as nothing had been heard from her by the husband for over seven years since their separation and that it would be unfair for the man not to move on with his life after her departure.
Quite similar to this is, if the accused can sufficiently prove that they had been separated for a period of not less than seven years preceding the time of the charge. However the party must not have been heard of by the accused as living during the period of time.
However people have continued to critique why bigamy should stand as an offence under the law. This is because of the African tradition of polygamy and our cultural norms in the years of yore and how unrealistic the western culture of monogamy holds in a culture that is basically polygamous. The western ideals have been said to be unrealistic due to the fact that they are in turn guilty of being though monogamously married but keep a string of mistresses who are more or less wives. There have also been criticisms as to the disparity in the terms of punishment under the Criminal Code and the Marriage Act. The former is a term of seven years imprisonment while the latter is a term of five years imprisonment viz-a -viz the intention of the legal draftsmen.
I am however of the opinion that intending couples seeking to get married especially under the act should, as a matter of course, be given seminars either by registries of court or specialised lawyers on matrimonial matters to understand the implication of the contract they intend to delve into before signing the dotted lines. This is more realistic and will serve as a check on the unfortunate surge of divorce cases, because couples will have an opportunity to think beyond the frivolity of the pomp of the wedding day to the reality of their union. It will also encourage a more holistic appraisal of the often negatively criticised African polygamy.
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