Can the Church Dissolve Marriage in Nigeria?

Can the Church Dissolve Marriage in Nigeria?

Emperor N. Iwuala, BL, LLM, PGDJ

The word ‘marriage’ is the noun form of ‘marry’ and ‘marrying’. Ordinarily, the term means a combination of things. However, it is more commonly associated with the legally recognized marital union of man and woman also known as matrimony and wedlock.

Marriage is regulated by law, custom, tradition, religion and attitude. When finally married, the man is designated as husband or hubby while the woman is wife. Each is also referred to as spouse. But together, they are known as couple.

There are various types of marriages. They are monogamous marriage which is marriage between one man and one woman. Polygamy is between a man and more than one woman while polyandry is between one woman and more than one man at a time. Gay marriage is between same sexes. However, in Nigeria and many other places, gay marriage and polyandry are seen as not only immoral and unnatural but unlawful. In such places they are not recognized as valid form of marriage.

In Nigeria, there used to be only three recognized ways valid marriage can be instituted.  They are statutory marriage, customary marriage and Islamic marriage. Customary marriage is recognized by law as far it conforms to the custom of the couple involved. But recently, in the recent case of Olisa Agbakoba v. A.G.F.(2021) LPELR 55906 (CA), marriage in a Roman Catholic Church, a Christian marriage has been recognized as a form of marriage called religious marriage which is marriage governed by rules of a particular religious group. However, just like every other custom will be subjected to validity test, the law will not recognize the validity of customary marriages that are illegal, immoral or which runs against natural justice, equity and good conscience. On the other hand, Islamic marriage may be categorized with customary marriage as it is marriage according to Islamic custom and practice. Nevertheless, while statutory marriage (commonly called ‘court marriage’) is strictly monogamous, the other forms of marriage can be validly polygamous. Instructively, statutory marriage is marriage according to English custom, tradition and law. It was imported into Nigeria as part of British colonization policy for the country. It is superintend by a government department called the Marriage Registry.

What then is the place of church weddings in Nigeria? The church plays a very important role in marriage. This is because marriage is taken as a serious rite in the Christendom. The Roman Catholic churches even see it as a sacrament. Because of this, the government licensed some churches as places where the clergy can lawfully conduct statutory marriages on behalf of the government. Such churches are known under the law as Licensed Places of Worship. Marriage solemnized in such places is both statutory marriage and church blessing of marriage or church wedding. The couple is usually given marriage certificate from the government Marriage Registry. The easiest way to know statutory marriage contracted in a Licensed Place of worship is from the type of marriage certificate the church issue to the couple. Marriage certificate evidencing statutory marriage usually carry the Nigerian Coat of Arm and inscriptions indicating that the marriage is contracted under the Matrimonial Act. In addition, some churches may also issue such other certificate or document from the church as evidence of church wedding and blessing of marriage.

However, not every church in the country has the licensed to celebrate statutory marriage on behalf of government. What then is the status of marriages celebrated in churches that are not Licensed Places of Worship? Such marriages are mere blessings of customary marriage or mere religious, liturgical, canon rites and rituals which can qualify as a religious form of marriage. On the other hand, church wedding where the couple had earlier contracted customary marriage may amount to church blessing of customary marriage. In such situations, parents’ consent or evidence of celebration of customary marriage is usually ascertained before such wedding is solemnized in the church. This is one of the reasons why the Diocese of Mbaise does not allow traditional marriage after wedding in her churches. Now; assuming a couple contracted church wedding without either of statutory and customary marriage first being contracted, respectfully, it connotes that such a wedding is a nullity as no valid marriage exists in the eye of the law.

Be that as it may, a customary marriage can be dissolved without any judicial intervention or pronouncement. This means that the parties can end the marriage on their own without instituting any action in court for an order of dissolution of the marriage. But for dissolution of marriage to occur, there must be a formal intention act on both parties who are tired of the marriage to bring it to an end. In most customs, the bride price and other marriage expenses are refunded to the husband seeking to dissolve the marriage and when this is done, the marriage can be said to have been deemed dissolved. Also, Islamic marriages can be dissolved by Sharia Courts while the customary or Area Courts have the jurisdiction to adjudicate over disputes arising over customary marriages. Area Courts are found mainly in the northern part of Nigeria.  They share some features with Customary Courts which are mostly found in the southern part of the country. The State High court is the only court that has the power to deal with disputes arising from statutory marriages. Nevertheless, as a court of unlimited jurisdiction, it also has concurrent jurisdiction with Customary, Sharia and Area Courts to also deal with disputes from both Customary and Islamic marriages. It is instructive to note that the church has no legal power to dissolve either statutory or customary marriage. However, the Roman Catholic Church has a domestic tribunal that nullifies marriages. It is a known fact that Anglican Church does not dissolve marriages no matter the circumstance. Whether some Christian denominations dissolve marriages is still a subject of research.

Be that as it may, the church is a major stake-holder in both institution and the nurture of marriages. It is poised to encourage healthy marriages and is hardly their dissolutions. That is why the church always intervenes in matrimonial disputes very often. This is because the Bible and Christianity are always positively disposed to family life.

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