FAMILY LAW 1.6 MATRIMONIAL CAUSES (2) NULL AND VOID MARRIAGES
Where the marriage is invalid owing to some defect. An invalid marriage may be void or voidable.
In Derenville v. Derenville.
The court took time to differentiate between a void and a voidable marriage. A void marriage is one that has never been in existence. Thus void ab initio. A voidable marriage is one that can be annulled at the instance one or both of the parties.
A void marriage does not need the courts to make it annulled… any decree to that effect is just restating the obvious. A voidable marriage need the courts to decree that it has been annulled… until such a decree has been made, the marriage remains in existence.
Approbation: (waiver or lapse of time) Where a party finds out that a marriage is voidable and refuses to challenge the validity of the marriage, he might be said to have lost he right to challenge it’s validity- G v. M. a void marriage cannot be approbated by the conduct of the parties.
Section 3 (1) a-e of the Matrimonial Causes Act lays down 5 grounds upon which marriage celebrated after the commencement of the act may be void.
A, Where either of the parties is lawfully married to a third party.
B, The parties are within the prohibited degrees of affinity and consanguinity.
C, Failure to comply with the law of the place where the marriage is celebrated.
D, Real consent of either of the parties has not been obtained ( due to duress fraud, mistake as to identity, insanity so as not to understand the nature of the transaction).
E, Either of the parties is not of marriageable age.
Each ground shall be explained.
EXISTING LAWFUL MARRIAGE: Section 33(1) of the Marriage Act also invalidates such marraiges. R v. Princewill. It relates to marriages celebrated in Nigeria only- oshodi v. oshodi.
In Asiata v. Goncallo.
Elese, a Nigerian a Yoruba man was taken to brazil as a slave. There he met and married Selia according to Muslim rites and then later in a Christian church. He came back to Nigeria with selia and he married Asatu in accordance with the moslem rights. Griffiths J held that the marriage was valid because;
- Elese was taken as a slave to brazil.
- Nigeria is not a Christian country.
- Elese was a Muslim and as such entitled to marry as many as four wives
- That selia did not complain about the subsequent marriage.
Onwudinjoh v. onwudinjoh
In this case, Jeremiah purported to marry Chinelo under native law and custom after being married to Agnes under the statute. It was held that the purported marriage to Chinelo under customary law was void.
PROHIBITED DEGREE OF CONSANGUINITY AND AFFINITY: the reason for affinity is because in the early courts. The marriage of man and woman was seen as making them one flesh.
Section 4 of the Matrimonial Causes Act provides instances where parties within the prohibited degree of affinity only may marry with the consent of the high court judge. If the judge is satisfied and sees their peculiar case as exceptional, he may allow the parties to proceed.
There are no exceptions to the prohibition of consanguinity.
FORMAL INVALIDITY: invalidated by lex loci celebrationis. Failure to comply with the formal local rules.
Section 7 to 17 of the act states the formal processes that need to be complied with before it can be said that a valid statutory marriage has occurred.
Section 33(2) of the Marriage Act provides that a marriage is invalid if both parties knowingly and wilfully acquiesce to its celebration without compliance with some formalities prescribed in the act.
As such, the parties must have been aware of the defect but nevertheless proceeded with the celebration- obiekwe v. obiekwe.
In bello v. bello
The parties went through a celebration in their celestial church which unknown to them is an unlicenced place of worship. They were issued a certificate by the church to that effect. It was held that the marriage was invalid.
In this case, the judge failed to take into cognizance, the knowledge and intention of the parties as provided by Section 33 (2) of the Marriage Act.
In Akwudike v. Akwudike;
The parties went through a Roman Catholic marriage. They failed to get the registrar’s certificate nor was any notice of marriage lodge with the registrar. Idigbe, J (as he was then) held that it was the intention of the parties to get married and they believed that they were going through a marriage recognized by law and held that the marriage was valid because they did not wilfully and knowingly acquiesce to the irregularity.
Obiekwe v. obiekwe
In this case, the parties gave the notice of marriage but failed to get the registrars certificate before the celebration of the marriage. It was held that neither of the parties were aware of the importance to get the registrar’s certificate. As such, the non-compliance was not wilful.
It seems thus that to be successful, it should be established that the parties did not knowingly and wilfully acquiesce to the celebration knowing that there was an irregularity. They must also intend to and believe that they contracted a valid marriage.
LACK OF REAL CONSENT: the consent of both spouses must have been obtained freely without fraud, duress, or mistake. Define each. It is immaterial that the party making the threat could not carry it out.
In H v. H,
The petitioner entered into an agreement with a French man to marry him in a bid to get a passport to enable her escape from Hungary for her safety. It was held that fear for life which was the primary reason for entering the contract was a vitiating element to her consent.
Singh v. Singh.
The wife’s parents arranged the marriage of the petitioner and represented the husband to-be was educated and handsome. When she met him at the registrar’s office, she thought that he was neither. She did not intend to proceed with the marriage but nevertheless went ahead out of obedience to her parents and her religious faith. It was held that there was no duress.
The mistake in this regard is that of identity or the nature of the kind of ceremony performed rather than mistake as to wealth of one of the parties.
In c v. c
Before the marriage, the husband represented to the woman that he was a well known pugilist (boxer). It was held that the mistake was one as to attributes and not identity.
In Corbett v. Corbett
The husband unknown to the wife was a hermaphrodite and had undergone certain operations. It was held that at the time of contracting the marriage, the wife was contemplating that she was marrying a male and not a combination of both sexes. It was held that the marriage was void.
In Valier v. Valier,
It was held that the Italian man did not understand the nature of the ceremony. He thought it was only one of betrothal unknown to him it was on of marriage. He never intended to go through a marriage ceremony with the respondent.
In instances of insanity, the test is usually to ask; did the party understand and appreciate the effect of entering into the union?
See also buckland v. buckland.
Neither of the acts prescribes what marriageable age means. Owing to this lacuna in the law, we are adviced to take note of the provision of the child rights act which states that the age of majority is 18.
Section 5(1) of the Matrimonial Causes Act lays down the grounds that makes a marriage celebrated after the commencement of the act (17th March, 1970) voidable. They include; where at the time;
A, incapacity to consummate the marriage.
B, insanity/unsoundness of mind/epilepsy (thus unfit for the responsibilities of marriage) note the case of hupunu-wusu v. hupunu-wusu.
C, either of the parties is suffering from a venereal disease that is communicable. (decree can only be granted at the instance of the clean spouse)
D, or the wife is pregnant for a person other than the husband (voidable at the option of the husband. May be refused on ground of public policy).
INCAPACITY TO CONSUMMATE
Consummation in this regard refers to sexual intercourse between the spouses. The courts must be satisfied that the defect is not curable. It futher implies impotency rather than sterility.
Impotency means the inability to have normal sexual intercourse.
Sterility means, the inability to procreate children. No fertilization.
As such, there must be complete sexual intercourse. Full penetration in the ordinary sense.
The incapacity to consummate the marriage must still be existing at the time of hearing the petition and the court should be satisfied that the defect is not curable or the spouse refuses to submit to medical treatment- Section 36 of the Matrimonial Causes Act.
Akpan v. akpan
The husband tried to have sexual intercourse but could not maintain an erection. He refused to submit to medical treatment. It was held that there was failure to consummate.
In Corbett v. Corbett
It was held that a male who had undergone sexual change does not have the capacity to consummate the marriage.
If the spouse has the ability but wilfully refuses to consummate, it may constitute a ground in the petition for dissolution the marriage.
For petitions b, c and d, Section 37 of the Matrimonial Causes Act provides that, to succeed, the petitioner must have at the time of marriage been unaware of the fact, the petition should be filed not more than 12 months from the date of the marriage or the date of knowledge of facts.
In smith v. smith
Having sexual intercourse with the wife after her being pregnant for another man was seen to be a waiver on the part of the man.
Marriage can be voidable if later, the parties discover that they are within the prohibited degrees of consanguinity and affinity.
Please note, the nullity provisions are applied subject to the conflict of laws rule.
At customary law, a marriage may be void where;
- There is lack of parental consent. It is the parents that receive the bride price.
- They are within the prohibited degrees of consanguinity or affinity. It is seen as an abomination in some customs.
- Non-payment of bride price except it is waived.
- A customary law marriage between a native and a non-native- fonseca v. passman, savage v. MacFoy.
- In Islamic law, a marriage where the girl can consent upon the attainment of majority is seen as voidable at the option of the girl.
- Irregular (fasid) marriages in Islamic law occurs where a Muslim marries more than 4 wives. The marriage is neither void nor voidable it is only irregular until the man divorces one or more of the wives to bring it within the limit of not more than 4 once more.
- In customary law, inchoate marriages occur where there has been a failure to hand over the bride.
In, re intended marriage of Beckley and abiodun,
Beckley authorized his father to pay the bride price (perform the idana ceremony). He met another girl and decided to marry her. His father filed a caveat on the ground that the Idana ceremony constituted a marriage. It was held that failure to hand over the bride to her husband did not constitute a valid marriage as such, he is free to marry another person.
The case of Onukwudoro v. Onulwudoro and the case of Afonne v. Affone seem to be in contrasting terms as regards whether it is retrospective or not.