Statutory marriages in Nigeria (1)

In the previous publications, I have made some attempts to examine the features of marriages under native law and customs which is an essential part of our culture and national life in Nigeria. This time around I will be looking at the other type of marriage that is also common among our citizens, that is the marriage under the Act or statutory marriage otherwise known as English or court marriage.

There are two systems of marriage recognized in Nigeria, that is: statutory marriage and customary marriage.

Statutory marriages are essentially monogamous marriages which are the union for life of one man and one woman to the exclusion of all others. On the other hand, polygamous marriages under native law and customs which have been extensively discussed in previous publication, admit multiple wives by one man.

As mentioned earlier, statutory/ monogamous marriage in Nigeria is regulated by the Marriage Act, hence it is called statutory marriage or “English or court marriage”.

Statutory marriage is under the exclusive legislative list in the constitution of Nigeria 1999 consequently, only the Federal Government can make laws on the issue of marriage. Ironically, only State High Courts have jurisdiction in issues having to do with such statutory marriages. State legislature has no power over it

By its very nature statutory marriage is the voluntary union for life of one man and one woman to the exclusion of all others. From this description we can see the following attributes of such marriages.

1. It is a voluntary relationship. The voluntariness in this context implies that the parties to the marriage must enter the union out of their own free will. The union must not be a product of force or threats of violence, fraud, deceit or misrepresentation.
2. It is for lifetime of the two persons involved, hence it is said “till death do us part”, though parties are at liberty to seek divorce in the appropriate court to terminate the marriage.
3. It is to the exclusion of any other man or woman. It also means that it a marriage between man and woman, not between man and man or between woman and woman, which will be a violation of the law of the land.

Thus, in a foreign case Corbett v. Corbett, the court annulled the marriage between a man and a transgender woman, stating that marriage is a union between a man and a woman not between a man and a man who transformed himself into a woman.

4. There are requirements for a valid Statutory Marriage that are personal which that parties intending to contract statutory marriage must meet. These include: 1. These include parties must be of marriageable age. 2.  Must not be within the prohibited degrees of consanguinity and affinity, in other words, they are not related by blood, like siblings, cousins, uncles aunts, etc. 3. Marital status of both parties must be single, no existing marriages. 4. Both sides consented to the marriage.
5. Sanity:  that is both parties are sane, not mentally disturbed (not mad)

On the Age of the Parties,  the Marriage Act does not specify the minimum age for Marriage under the Act, but when Sections 11 (1) (b), 18, 19, and 20 of the Marriage Act are read together the obvious implication is that the Act is prescribing the minimum age is twenty-one years since the Act states that any party less than 21 years old must obtain the consent of the parents or guardian.

Also Section 3 (1) (e) of the Matrimonial Causes Act declares a marriage void where either of the parties is not of marriageable age.

In the case of Elias v. Elias, the court held that full age under Nigerian law is the common law age of twenty-one (21) years irrespective of the voting age of 18 years.

However, Section 21 of the Child Rights Act 2003, provides that no person under age 18 years of age is capable of contracting a valid marriage and any marriage so contracted shall be null and void and of no effect.

Marriage must be with the consent of both parties, thus Matrimonial Causes Acts.3 (1) (d) invalidates a marriage in which consent is procured by fraud, duress or a mistaken identity of the other party or as to nature of the ceremony performed or where the other party has mental incapacity or lack of understanding the nature of the marriage contract or is of unsound mind.

Apart from the consent of parties, consent of parents is necessary for validity of marriage where the parties are under the age 21 years.  In the Nigerian case of Agbo v. Udo.The plaintiff contracted a statutory marriage with his wife. The husband later petitioned the court for the dissolution of the marriage on the ground of his wife’s adultery with a co-respondent. The co-respondent argued that the wife was a minor at the time of the marriage and that no parental consent was obtained as required by the law (what a boldface!). Consequently, he contended that there was no valid marriage between the petitioner and the respondent which the Court could be dissolved.

The Court held that notwithstanding the absence of parental consent the marriage was valid under section 33 (3) of the Marriage Act. In other words, lack of parental consent does not violate the provision of section 33 of the Marriage Act.

To be continued

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