The Institution of Marriage and the Law in Nigeria

The Institution of Marriage and the Law in Nigeria. 

By Barr. Nneoma Grace Ogbah

Prior to a thorough study of what marriage is and what it entails, it is very pertinent to point out that marriage as most of us know is a contract between a man and a woman, conducted by due process of law, be it statutory or customary, by which a man and woman agree to live together during their joint lives. In Nigeria, the two forms of marriage we have are monogamous and polygamous marriage. Monogamous marriage as defined in the case of Hyde .v. Hyde (1866) L.R 1PD.130 is the voluntary union of one man and one woman for life, to the exclusion of all others while polygamous marriage is the voluntary union of one man to two or more wives simultaneously or one after the other. However, some traditional laws provides that the number of wives to be taken in a polygamous marriage shall not exceed 4.

Monogamous marriage in Nigeria is regulated by the Marriage Act and Matrimonial Causes Act, and this explains why it is referred to as statutory marriage while polygamous marriage is regulated by the rules of customary law and that is why it is referred to as customary law marriage. We shall now talk fully at length about these forms of marriages.

STATUTORY MARRIAGE:

As earlier stated, statutory marriage is a marriage governed by the law (Marriage Act and Matrimonial Causes Act). For a statutory marriage to be complete, certain requirements must be met and these includes:

1. Parties to a contract of statutory marriage must be of age at the time of entering the marriage contract. See section 3(1)(e) of the Matrimonial Causes Act. Also, by the provision of Section 18 of the Marriage Act, parties to a marriage contract must be at least 21years of age, where any of the parties is below the age of 21, the consent of the father, mother or guardian must be gotten,annexed to an affidavit aforesaid before a marriage license can be issued to the parties.
2. Neither of the parties must be married to any other person either under the statutes or customarily at the time of the marriage. See section 3(1)(a) of the Matrimonial Causes Act,

1990

1. Parties to a marriage contract must not be within the prohibited degree of affinity and consanguinity I.e marriage between persons who

are relatedby blood or by marriage. See section 3(1)(b) of the Matrimonial Causes Act, 1990.

However, it is worthy to note that section 4of the MCA of 1990provides for exceptions to the general rule of affinity and consanguinity. Parties who are related by affinity or consanguinity and wish to marry may apply to a judge in writing for permission to get married. If the judge is satisfied that the circumstances of their case is so exceptional as to justify the granting of the permission sought, he may order/ permit the applicants to marry each other.

1. Both parties must have voluntarily consented to the marriage. Where consent is obtained by

duress, fraud, mistaken identity, such marriage would be declared void. See section 3(d)(I)(ii) of the MCA. Note however, that the fact that parental consent is absent in a statutory marriage does not render such marriage invalid. Thus, in the case of Agbo .v. Udo (1947) 18 N.L.R.152, it was the decision of the court that notwithstanding the am Spence of parental consent, the said marriage was valid under section 33(1) of the Marriage Act.

1. Parties to a statutory marriage, must at the time of their marriage, be sane. Insanity of any of the parties involved in a marriage contract will render such marriage void. See section 3(1)(d)(ii) of the MCA.

Parties who wish to marry under the Act are expected to follow a particular procedure as laid down under the Marriage Act, specifically section 7 -17 of the Marriage Act, 1990. One of the parties to the marriage is expected to first of all, fill and endorse a notice of marriage in the prescribed form, after which the notice is displayed on the public notice board or door of the registrar’s office until the registrar’s certificate is granted or the expiration of three months after the notice is displayed. The registrar may decide to issue his certificate to the applicant after 21 days or 3 months from the date of notice and after ensuring compliance with the provision of the law. Where anyone whose consent is required by law for such marriage enters a caveat in the marriage notice book, such caveat stands between the parties and the issuance of the registrar’s certificate and such certificate can only be issued if the caveat is removed by a judge of the High Court.

CUSTOMARY LAW MARRIAGE:

This is the kind of marriage which id governed by the rules of native law. These customs/ rules that govern marriage vary from one place to another and doesn’t bind each other. For a customary marriage to be held valid, the following must be shown:

1. That both parties to the marriage are of marriageable age. Under customary law, there’s no age specification but it is believed that once the parties have attained the age of puberty, they can get married.
2. That the consent of both parties and their parents were duly sought and gotten. However, it is worthy to point out that under section 5 of the Marriage, Divorce and Custody of Children Adoption By-Laws, 1958, which is applicable in Lagos, Osun, Ogun, Edo, Ondo, Ekiti and Delta states, where parents to either the bride or groom are adamant to give their consent, their consent can be dispensed with if the bride is 18years and above.
3. That both parties are not within the prohibited degrees of affinity and consanguinity.
4. Payment of bride price or dowry. Failure to shown that bride price was paid is sufficient proof that there was no customary marriage.

BREACH OF CONTRACT TO MARRY

Marriage is regarded as a very sacred institution both in our jurisprudence and in our sociology. Accordingly, an agreement to enter into a marriage should leave nobody in doubt as to the real intention of the parties to enter into a marriage.

A promise to marry may give rise to a contract to marry and when this happens, it ca be said that the valid elements of a binding contract are present and a breach of such agreement can give the aggrieved party the right to sue for damages. For an action on breach of promise to succeed, the following factors must be proved to the satisfaction of the court:

1. That there was a promise of marriage under the MCA, MA, Islamic law or customary law.
2. That one of the parties to the agreement failed or refused to keep to the said marriage agreement.

After the above has been sufficiently and satisfactory proven to the court, the plaintiff is also expected to corroborate his or her testimony with some material evidence in support of such evidence. See the case of Ezeanah .v. Atta (2004) 7NWLR ( pt.873) 468.

A mere exchange of love and affection is not enough to give rise to a promise to marry. It was held in Ezeanah .v. Atta (Supra), per Niki Tobi J.S.C thus;

“… premarital gifts in order to qualify as gifts in

furtherance of an agreement to marry, must be clearly, cleanly and unequivocally traceable to an agreement on the parties to marry. Where gifts part from any of the parties to the other on love and not on the business of agreement to marry, with all the ingredients of offer, acceptance, consideration, intention to create legal relation and capacity to contract the agreement, the court must not come to the conclusion that the parties agreed to get married hence the gifts. That is not talking law.”

A breach of promise to marry may be express, implied or even anticipatory. A successful proof of breach of promise to marry entitles the aggrieved party to award of damages (general or specific damages) by the court but not an order for specific performance because the court cannot force one to marry another. An aggrieved party in an action for breach of promise to marry may not only recover damages from the failing party, but also from any 3rd party who in any way induced the breach of the promise.

On the other hand, a defendant in an action for breach of promise to marry can put up certain defenses as justification for his action. Some of these defenses that can be pleaded include; fraud, duress, undue influence, mistake, blood group misrepresentation, frustration, cheating, genotype, assault or even what we refer to as “ special defenses “ such as physical and mental infirmities which renders the plaintiff unfit and unsuitable for marriage. It may be pleaded that there are some actual moral, physical or mental infirmity in the plaintiff which makes him or her unfit for marriage. The infirmity must be such as to render the plaintiff unfit for marriage; the infirmity must have been discovered after the contract to marry was made; and the defendant must show as a necessity, that some actual infirmity in the plaintiff exist as mere suspicion is not enough. A party who discovers after the contract to marry has been made that the intended spouse is a lesbian, gay, bisexual, transgender (LGBT) or a hermaphrodite could perhaps plead these facts as a special defence to a claim of breach of promise to marry.

The burden to prove any of the defenses aforementioned is on the defendant relying on it. See section 133 of the Evidence Act of 2011.

Finally, it is pertinent to note that when a promise to marry is made subject to a condition precedent, there can be no breach until such condition is fulfilled. This was duly demonstrated in the old case of Aiyede .v. Norman- Williams (1960) L.L.R 253.

In the above case, the parties agreed to marry each other on the conditional promise of the defendant to first obtain the consent of his father. He wrote his father asking for his consent, but his father refused to give consent. The defendant married another woman and was consequently sued by the plaintiff for breach of promise to marry her. The court held that the promise is only binding on the promise where the condition precedent is fulfilled and for that reason, where he fails to obtain parental consent, as is the case in this particular situation, the promise cannot be held liable for a breach of the promise.

LEGAL EFFECTS OF MARRIAGE

The existence of a lega marriage comes with certain legally recognized effects. Some of these effects of marriage include :

1. Consortium- This is the living together of two people as husband and wife with all the incidents that flow from the relationship. [ Bromley, P.M. Family Law, 3rd Ed.( Butterworth, London,(1960)]

Some of the incidents referred to above are:

1. Adoption of husband’s surname and retain ment of same even after the determination of the marriage.
2. Both parties owe each other the duty of sexual intercourse and co- habitation as long as they’re living together as husband and wife.

1. Although a husband and wife may enter into a contract independently, there are certain cases determined by the rule of law where the husband is held liable for the contract of the wife. Usually, I’m those cases, the wife is seen as the agent of her husband. There are however, exceptions to this rule, which are to the effect that a husband will not be liable for contracts entered into by the wife. A husband will not be held liable for contracts entered into by his wife if:

1. The supplier has expressly been warned by the husband not to supply goods to his wife on credit.
2. The order although for the supply of necessaries was excessive and extravagant, having regard to the husband’s income.
3. When the husband has supplied the wife sufficient allowance or means for the purpose of buying such goods.
4. When the wife has been forbidden to pledge his credit.

1. A husband and wife married under statute are not to be held criminally liable for the offence of conspiracy between themselves as they are deemed to be one in the eye of the law.
2. A husband and wife of a statutory marriage are in civil and criminal matters competent and compellable witnesses so as to testify for the other. See section 161(1)(2) of the Evidence Act. However, compellability here doesn ’ t extend to any communication between them during the marriage, unless with the consent of the other.

NULLITY OF MARRIAGE

Nullity of marriage can be said to be a situation where the marriage is invalid either because it is void ab initio or viodable at the instance of one party. See section 34 of the MCA. A void marriage is one which in the eye of the law never existed while a voidable marriage is one that is recognised by the law as valid while subsisting, but may at the instance of one of the parties because of some defects be nullified by a competent court of law. See the case of De Reneville .v. De Reneville (1949) p.111.

A decree of annulment can only be made if one of the parties of the marriage applies to the court for a decree of nullity. Nullity of marriage is very different from divorce or dissolution of marriage. In the case of nullity of marriage, the marriage is invalid ab initio or voidable at the instance of one party, while for the dissolution of marriage, the marriage is brought to an end because the marriage has broken down irretrievably. Only parties to a marriage can file for a petition for dissolution of marriage, but the petition for nullity or annulment of marriage can be filed by any interested third party whose legal interest may be affected by such a marriage. Also. When a marriage has been annulled, the couple becomes single again as if they have never married before, but after a divorce, the couple will become divorcees.

It is however, worthy to note that by the provisions of section 38(2) of the MCA, a decree of nullity in respect of a voidable marriage shall not render a child of the parties born during the time of their marriage illegitimate.

By the provisions of S.3(1)(a)-(e), there are 5 grounds on which a marriage maybe rendered void. The include:

1. Where either of the parties is lawfully married to another person at the time of the marriage.
2. Where the parties are within the prohibited degrees of affinity and consanguinity.
3. Where the marriage is not valid under the law of the place where the marriage takes place, by reason of failure to comply with the requirements of the law of that place with respect to the form of solemnisation of marriages.
4. Where consent obtained from either of the parties is not a real consent probably because of the existence of fraud or mistaken identity.
5. Where either of the parties is not of marriageable age.

In the same vein, section 5(1)(a)-(s) of the MCA provides for grounds on which a marriage is voidable. These ground include:

1. When either of the parties is incapable of consummating the marriage.
2. Where either party to the marriage is either of unsound mind, mental defective, or subject to recurrent attacks of insanity or epilepsy.
3. Where either party to the marriage is suffering from a general disease in a communicable form.
4. Where the wife is pregnant by a person other than her husband.

Note however that a decree of nullity of marriage on grounds of unsoundness of mind general disease or pregnancy by another person other than the husband will only be granted by the court of it is sufficiently shown/ proven to the court that:

1. The petitioner was ignorant of the facts constituting the ground.
2. That the petitioner filed his or her petition not later than 12months after the date of marriage.
3. Marital intercourse has not taken place with the consent of the petitioner since the petitioner discovered the existence of the facts constituting the ground.

Under customary law however, there are also void and voidable marriages. A customary law marriage will be declared void if:

• It is shown that the required payment of bride price was not done.
• Parental consent being a very important part of customary law marriage was not gotten before the parties entered into the marriage.
• The parties are within the prohibited degree of affinity and consanguinity.
• A customary law marriage is arranged between a Nigerian and a non-native who is not subject to customary law.

A customary law marriage in the same vein, does not have so many grounds that will render it voidable. However, the only ground which seems to be very important and sufficient to declare a customary law marriage voidable is where an infant is given into early marriage without her consent. However, an infant who is made a party to this kind of marriage may repudiate the contract on attaining majority.

DISSOLUTION OF MARRIAGE

A party seeking to dissolve or revoke a union on grounds of irreconcilable differences (as that is the only recognized ground for divorce) must do that in accordance to the law.

By the provisions of section 30(1) (3) of the Matrimonial Causes Act of 1990, proceedings for a decree of dissolution of marriage shall not be instituted within two years after the date of the marriage except by leave of the court. Sub section 3 went further to state that the court shall not grant leave under this section to institute proceedings unless it is proven that refusal to grant such leave would impose exceptional hardship on the applicant or that the case is one involving exceptional depravity on the part of the other party to the marriage.

A lawyer engaged for the divorce proceedings would be the one to obtain this leave for the petitioner by filing the necessary application in court. The court in determining the application for leave to institute proceedings of dissolution of the marriage under two years will consider the interest of any children of the marriage and question whether there would be any probability of a reconciliation between the parties before the expiration of the period of two years after the date of marriage. See section 30(4) of the MCA.

Section 15(2)(a) – (h) of the MCA, 1990 provides for the grounds upon which a marriage can be dissolved. They include;

1. That the respondent has willfully and persistently refused to consummate the marriage. This act of refusal must be continuous and for no just cause, and must exist up to the commencement of the proceeding.
2. That since the marriage, the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent. The two elements “adultery” and “intolerability” must be proved independently.
3. That since the marriage, the respondent has behaved in a way that the petitioner cannot reasonably be expected to live with the respondent.
4. That the respondent has deserted the petitioner for a continuous period of at least one year immediately preceding the presentation of the petition. The petitioner in this case must prove that there was de facto separation for no just cause, an intention to leave their matrimonial home with the aim of remaining permanently separated and lack of consent of the petitioner to the desertion.
5. That the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition and the respondent does not object to a decree being granted.
6. That the parties to the marriage have lived apart for a continuous period of at least three years immediately preceding the presentation of the petition.
7. That the other party to the marriage has for a period of not less than one year, failed to comply with a decree or restitution of conjugal rights made under the MCA.
8. That the other party to the marriage has been absent from the petitioner for such time and in such circumstances as to provide reasonable grounds for presuming that he or she is dead.

The action for dissolution of a statutory marriage can be brought under any one or more of the facts stated above before the court can make a decree for dissolution of marriage. See section 55 of the MCA, 1990.

The High Court of the State can make two orders viz: Decree Nisi and Decree Absolute. A Decree Nisi is made first and this order gives the other party the opportunity to appeal the decision of the court. The second order i.e Decree absolute is made 3 months after the first decree as provided under section 58 of the Matrimonial Causes Act. The Decree Nisi is made absolute after 3 months where no appeal is made and there is no right to appeal the decision of the court after it has been made absolute. See section 58(1)(a)(i) of the MCA.

It is however, worthy to note that a decree nisi cannot be made absolute where either of the parties to the marriage has died. See section 58(4) of the MCA, 1990.

Defenses and Bars to a Petition of Divorce:

A decree of divorce will be issued to a petitioner who has successfully proven that his or her marriage has broken down irretrievably. However, where certain bars are present, the court will deny the petitioner such decree. Note however that these bars on the other hand serves as a defense to the respondent. These bars are called discretionary and absolute bars.

Absolute bars just as the name implies absolutely prevents a petitioner from obtaining a decree of divorce. The 3absolute bars to a petition for divorce are: A. Condonation :

This is provided for by section 26of the MCA and entails the forgiveness of all known matrimonial misconduct by an offended spouse and reinstatement of such erring spouse on the condition that such matrimonial misconduct would not be further continued. A party seeking to rely on condonation as a defense must show that the petitioner had full knowledge of the Matrimonial wrong, forgave him/her and that there was mutual reconciliation of the parties. B. Connivance:

Where the petitioner has connived at the conduct constituting the facts on which the petition is based, the court shall not issue a decree of dissolution. See also section 26 of the MCA,1990. By connivance, we mean prior consent, encouragement and willful contribution of the petitioner to the acts complained of. C. Collusion:

This deals with the acting together of the parties to achieve the prosecution of a suit for divorce with intent to cause a perversion of justice. See section 27of the MCA, 1990.

Discretionary bars on the other hand are bars that unlocks the power of the courts to deny a petitioner a decree of dissolution of marriage based on the courts discretion. By the provision of section 28 of the MCA, the court may in its discretion refuse to make a decree of dissolution of marriage if:

1. Since the marriage, the petitioner has committed adultery that has not been condoned by the respondent or, having been so condoned, has been revived.
2. Since the marriage, the petitioner has willfully deserted the respondent before the happening of the matters relied upon by the petitioner.
3. Since the marriage, the habits or conducts of the petitioner has contributed to the existence of the matters relied upon by the petitioner.

Barr. Nneoma Grace Ogbah

Legal officer, DITOIL Energy ltd.

Phone no: 08119690931, 08106472510

Email:ogbahgrace994@gmail.com

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