FAMILY LAW 1.3 SOME DISCUSSIONS ON MARRIAGE
With the Cession of Lagos to the British in 1861 the Marriage ordinance of 1863, an European legislation governed marriages.
With the Amalgamation of North and South in 1914, the Marriage Ordinance 1914 was enacted to apply to the whole of Nigeria. It made marriage a purely civil function. Finally the current marriage act was introduced. Section 55 of the Marriage Act repeals the marriage ordinance and thus regulates the celebration of monogamous (statutory) marriages in Nigeria.
Essential validity means the characteristics one must possess or in order to have capacity to marry.
Formal validity simply means the steps one must take before it can be said that a valid marriage has been contracted. Section 7 to 17 of the Marriage Act deals with the formal processes.
The essential validities of marriage include;
- Age- Section 23 and 24 of the Child Rights Act which states 18 years. In the customary area, the eastern states age of marriage law specifies age 16.
- No Prohibited degree of consanguinity or affinity. Consanguinity simply means relation by blood. Affinity means relation by marriage. The approval of the High court Judge can be sought in affinity cases and is granted in exceptional circumstances. In various customs, marriage between blood relations is also prohibited, no matter how remote the relationship is. In Islamic marriages, there is prohibition as regards marrying a pagan. However, a man can marry a Christian woman.
- Dowry: in customary law, it is necessary. It creates the status of betrothal. In Islamic marriages, the dower has no maximum but is set at a minimum of ¼ of a Dinar. The Islamic marriage: is solemnized by a Mallam in the presence of at least two upright Muslims.
- Single status: see the definition of marriage by Lord Penzance in Hyde v. Hyde, the provision of Section 35 of the marriage act. The marriage act is against bigamy.
In cases between a Nigerian and a foreigner that want to marry under customary law, the English law would prevail over the customary law except injustice would be manifested.-Savage v. Macfoy. Fonseka v. Passman.
- Consent of the parties: marriage is a voluntary union. In the eastern states, consent of the girl is indicated by serving the husband the remaining palm-wine in the glass to drink during the marriage ceremony. Section 361 of the Criminal Code makes it an offence to forcefully marry someone. Section 48 of the Marriage Act.
- Parental consent: if a party to the purported marriage is below 21 and is not a widow or widower, the written consent of the parent (before the marriage) is needed- Section 48 of the Marriage Act. Where parents are unavailable, the guardian, a judge, a civil servant not below the grade of assistant secretary can give the requisite consent.
In Islamic marriages, the father can conclude marriages on behalf of his infant daughter but she can repudiate it after she has attained puberty- Ijbar.
Section 48 of the Marriage Act makes it an offence punishable by 2 years to marry a minor without the consent of parents- Agbo v. Udo.
In customary law, the consent of the girl’s parent is needed irrespective of her age because they are the ones that receive the bride price. The Marriage Custody and Adoptive Bye Laws 1958 applicable to the loood (Lagos, Ondo, etc) states provide that where the girl is up to 18 years, the parties can sue their parents to give reasons why consent is withheld and if it is unreasonable, the court may authorize the marriage.
- Sanity: both parties need to appreciate the nature of the marriage.
We have treated the general essential validity. We shall now briefly discuss the formal validity.
- Formal validity of marriage.
There are procedures and formalities which should be fulfilled to contract a valid marriage.
Section 3 of the Marriage Act provides that the president can divide Nigeria into marriage districts and for each district there is a registrar appointed.
Section 7 to 17 of the Marriage Act provides for the steps that need to be taken before a valid marriage can be contracted.
Section 33 of the Marriage Act invalidates marriages that fail to comply with the formal validity of marriages.
Section 3 of the Matrimonial Causes Act invalidates marriages that fail to comply with the essential validities.
The preliminaries of marriage include,
- Registrar’s certificate.
- Special license
- THE NOTICE OF MARRIAGE. Section 7 Of the Marriage Act provides that a party intending to marry should sign a “form A” and give to the registrar of the district in which he intends to marry.
Section 8 of the act provides that If the person is illiterate, a mark in the presence of a literate person who shall attest to the same as in “Form B”. Section 40 of the Marriage Act provides 5 years imprisonment for knowingly entering a false detail.
Section 10 of the Marriage Act provides that; the registrar should enter the details into the Marriage Notice Book and return it. He shall also display the notice in the outer door of his office so as to welcome a caveat.
- THE REGISTRARS CERTIFICATE. Section 11 of the Marriage Act provides that the registrar shall issue his certificate as in “Form C”. after the expiration of 21 days and before the expiration of one month from the date of notice… and upon the payment of a prescribed fee… if he is satisfied by the affidavit that:
- One of the parties has been resident in that district for not less than 15 days
- The parties are of marriageable age or have the written consent of their parents attached to the affidavit. (please note the provision of the child rights act which sets the boundary of majority to 18 years).
- That both parties possess a single status.
- There is no impediment of kindred or affinity or other lawful hindrance to the marriage.
The affidavit shall be sworn before a registrar and the parties should be made to understand the implications of marriage.
Section 12 of the Marriage Act provides that the marriage should take place within 3month after the date of notice else the certificate becomes void and the parties may have to re-apply.
- SPECIAL LICENSE special license is granted in situations where the parties cannot wait for the 21 days or they want to marry quietly without publicity. For example, celebrities. Section 13 of the Marriage Act provides that they must not be within the prohibited degrees and there must have been genuine consent and no other impediment. The registrar may then grant them a form as in form D.
- CAVEAT: Section 14 Of the Marriage Act provides that anyone against the issue of the registrar’s certificate should enter a caveat in writing before the issue of the certificate with the word “forbidden”, stating grounds, his/he name and address.
Section 15 provides that the matter should be referred to the high court judge of the state and both parties shall be heard summarily. If the judge is satisfied, he may allow the caveat resulting in no certificate. If the grounds are unnecessary, the judge then writes “cancelled by order of the high court”. And then signs his name. The court may order the caveatrix to pay compensation if the ground for entering the caveat is fraught with malice or is vindictive Section 41 of the Marriage Act. The three months computation shall not include the time spent on the case. Such judgment is subject to appeal.
Olikagbue v. Olikagbue.
The caveatrix, Victoria Olikagbue alleged that she was married to Christopher Olikagbue. That they had their customary marriage Christopher paid dowry and she was taken to his home. They had six children and the man deserted her later and now intends to marry Anthonia. The caveat was thus upheld. The taking to the house is the major element of upholding customary marriages.
In the matter of marriage ordinance, Beckly and Abiodun
The boy had authorized his father to organize his marriage in his absence. The father paid the bride-price. The respondent then wanted to go ahead and marry another woman. When the father filed the caveat, the court held that the handing over of the bride is a significant feature and since this was absent, there was no marriage.
THE CELEBRATION OF THE MARRIAGE.
After obtaining the registrars license, the marriage can be celebrated in any of the following places;
- Licensed place of worship.
- Registrar’s office.
- Special license situations
- Nigerian diplomatic missions.
- LICENSED PLACE OF WORSHIP.
Section 21 of the Marriage Act provides that marriage may be celebrated in a licensed place of worship by a recognized minister in accordance with the rites and usage of the church.
Went further to provide that it should be celebrated
- In open doors.
- between 8 o’clock and 6pm.
- In the presence of at least 2 witnesses.
In my opinion, this provision simply goes to show that there should be no secrecy in the celebration of marriage. – check Martins v. Adenugba.
Section 22 of the Marriage Act provides that the minister should not celebrate the marriage if he has not been presented with the registrar’s certificate or he knows any just impediment to the marriage.
Section 25 of the Marriage Act provides that immediately after the marriage, the officiating minister is to complete the certificate in duplicates signed by him, the parties and the two witnesses (and retain a counterfoil). One for the registrar, one for the couples and the last for the church.
The Marriage Act does not mandate the publication of banns of marriage. Nor does it compel a priest to celebrate marriage especially on grounds of previous divorce.
- MARRIAGE IN THE REGISTRAR’S OFFICE.
Section 27 of the Marriage Act provides that the parties may decide to celebrate their marriage in the registrar’s office… Between 10 am and 4 pm in open doors and the presence of two witnesses.
Marriage, its gravity and legal consequences should be explained to the parties. Then it is solemnized by the taking of each other as husband and wife. The registrar then prepares the certificate in duplicates. He, the parties and the witnesses sign it. One is kept by the registrar and the other is given to the couple.
- MARRIAGE UNDER SPECIAL LICENSE
Section 29 of the Marriage Act It can be celebrated in a place stated in the license. It should however be celebrated by the registrar or minister of religion.
MARRIAGE IN NIGERIA DIPLOMATIC MISSIONS OFFICE. Section 49 and 50 of the Marriage Act. One of the parties must be a Nigerian citizen and it should be celebrated before a diplomatic or consular officer of rank of secretary or above. The fees shall be converted to local currency at the official rate of exchange. Section 49 makes such foreign marriages acceptable as though it were celebrated in Nigeria. Section 18 of the Interpretation Act provides that a marriage celebrated abroad would be treated as a monogamous marriage if it is accepted in the place it is being celebrated as a voluntary union of one man and one wife to the exclusion of all others during the continuance of the marriage. –R v. Princewill.
` Other misconceived types of marriages:
*Church marriage Instances where, (contrary to Section 22 of the Marriage Act), the church insist that the parishioners marry according to the rites of the church and a certificate to that effect is granted after such marriage.
In Obiekwe v. Obiekwe. As Palmer J held that there is only one form of monogamous marriage in Nigeria and that is marriage under the law.
* Church Blessing includes when the church insists that a parishioner that has been married should come and bless their marriage in the church. This does not affect the validity or otherwise of the marriage. Martins v. Adenugba.
Proof of marriage.
Section 30 Of the Marriage Act provides for the filing of a marriage in the Marriage Register Book.
Section 32 of the Marriage Act provides that every certified copy or entry in the Marriage Register Book shall be accepted as proof of marriage. In practice, the courts are not willing to disregard marriages.
Customary law marriage can be proven by witnesses to the marriage ceremony as no uniform record is kept by the customary marriage system. It is thus submitted, that there should be invitations to register customary marriages with the registrar to set a pathway for future database and record keeping.
The proposed reformation of the marriage act provided that;
- The age for marriage shall be 16 for men and 14 for women.
- Registration of customary law and Islamic law marriages were provided
- Frowns against bigamy but does not put an offence.
A non-native shall be governed by English law. Savage v. macfoy, fonseca v. passman. In the North, this law may not be good law because native law
Referred to as Idana in to the Yoruba. Section 2 of the Limitation of Dowry Law LEN defines it as any property given to the parent of a girl on account of a marriage. Sets a limit of 60 naira else 6 months imprisonment. In practice, the laws are disregarded the bride price usually varies according to the outcome of negotiation between the families, custom of the particular place, literacy and education level and standard of the girl, amount of suitors, and so on.
Bride price creates a status of betrothal rather than marriage.
No specified date but something should be paid before the marriage. In patrilineal societies, it is paid to the father of the bride or the eldest son.
Some people have advocated for the outright abolition as it is usually too high. Parents have been accused of using part of the bride-price money to buy send forth gifts for their daughters thus requesting a higher bride-price to cover the cost. Argued that the above mentioned and others prevent people from marrying.
Other types of customary law marriages.
Besides the strict bride price marriage, there exists;
- Sororate marriage: on the death of a wife, the widower may be presented with a substitute by the deceased wife’s family without a fresh marriage procedure.
- Widow inheritance/ levirate marriage: the widow may choose to become the wife of any of her late husband’s brothers or son or close relative without need for fresh bride-price. A son cannot inherit his own mother.
- Woman to woman marriage: a wife provides a woman for her husband to bear children in her place. There is always a man at the background and the woman pays the bride price. Meribe V. egwu.
- Big dowry small dowry marriage: for example, in the waterside areas of Ijaw; when the bride price paid is large, the wife and the children become that of the man. If the dowry paid is small, the woman and her children remains part of her original family.
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