FAMILY LAW 1.1 GENERAL INTRODUCTION
INTRODUCTION.
A family is the smallest unit in the structure of the society. Consists of people related by blood, marriage or adoption. Universally recognized and highly regulated by law.
Black’s law dictionary defines marriage as; “The legal union between one man and one woman”. In Corbett v. Corbett- The court held that the marriage was void ab-initio as Ashley was a man at birth who underwent sex change and was incapable of consummating marriage. At the time when this decision was given, opinions were torn as regards sex change and the likes. So also in Nigeria.
SYSTEMS OF MARRIAGE IN NIGERIA.
- Monogamous
Monogamous marriage
Monogamous marriage was defined by Lord Penzance in; Hyde V. Hyde as
“The voluntary union for life of one man and one woman to the exclusion of all others”.
Polygamous marriage.
The voluntary union for life of one man with one or several wives. Capacity to marry more than one wife.
Polyandry is not permitted in most Nigerian customary law.
Polygamous marriage consists of customary and Islamic polygamous marriage.
| Customary law marriage. | Islamic law marriage. |
| Infinite wives | Limit of 4 wives. |
| Governed by the various dynamic unwritten customs of the people. | Governed by the written and fixed Islamic law. The Maliki school being the most prominent in Nigeria. |
They both mirror an accepted usage. See the case of Estate of Alayo deceased.
Types of marriage in Nigeria
- Statutory marriage.
- Customary
The statutory marriage.
Section 18 of the interpretation act defines marriage as
“Marriage recognized by the law of a place where it is constituted to be a voluntary union for life to the exclusion of others during the continuance of the marriage”.
Monogamous or statutory marriage was defined in
Hyde v. Hyde by Lord Penzance as,
The voluntary union for life of one man and one woman to the exclusion of all others.
Marriage creates status, reciprocal rights and obligations fixed by law on the parties.
There are ceremonies needed for its solemnization (to acquire the status of husband and wife) and procedures for its dissolution.
SANCTITY OF MARRIAGE.
Omnia praesumuntur rite esse acta. The notion that the law would strive to enforce marriage. Onwudinjo V. Onwudinjo, Obiekwe v. Obiekwe.
– marriage can be presumed from cohabitation.
– Fight against agreements that interfere with marriage- Spiers v. Hunt, Shaw v. Shaw.
Bride price and handing over completes the marriage process in customary law.
