‘It is high time we reviewed our marriage laws in Nigeria’

updated: Monday 25-08-2008

Samaranda OlarindeSamaranda Olarinde is Romanian by birth but Nigerian by marriage. The legal authority on family law speaks with Bukola Olajide on the concept of marriage, divorce and related issues under the Nigerian Family Law. Excerpts:

Going by the provision of the Nigerian family Law, one can conveniently say that so many marriages are infact invalid. Would you agree with that statement?
Absolutely. It is an unfortunate phenomenon in Nigeria that many unions even between the highly educated and the elite are entered into without being a legally valid union because there is a misconception about the validity of a marriage. For a marriage to be valid, certain ingredients must be present before the law recognises such a union as valid and having legal effect on the parties. For instance, Nigeria is operating a tripartite legal system in the institution of marriage which are; the statutory laws (the received English laws and the common law before 1900), the customary laws and the Islamic laws (embodied in the Sharia Law which operates in the Northern part of the country).

As we have different sets of laws regulating the institution so do we have different courts administering these laws. This means a person can enter into a monogamous marriage by marrying according to the Marriage Act, by celebrating the marriage in a registry or a recognised place of worship, which is the ecclesiastical celebration.

Secondly, we also have the legally recognised marriage under the customary laws, which is recognised, by the various customary laws in the country and the customary marriage is a potentially polygamous marriage.

The third is the Islamic marriage, which recognises a limited polygamy by allowing a man to marry up to four wives.Polygamy in the Nigerian system means polygyny, which allows only a man to marry more than a wife, which is absolutely recognised in many of our cultures. The other form of polygamy is polyandry, which allows a woman to have more than one husband; which is not allowed under any of our customary laws. These three forms of marriage are legally recognised in Nigeria and they co-exist and are regulated by their different laws, which are administered by different courts.

What constitutes a valid marriage under the Nigerian Family Law?
Where a couple decides to marry according to the Marriage Act, which is a monogamous form of marriage, the couple must carefully follow the laid down procedure under the Act which is why the marriage is called Statutory Marriage or Marriage under the Act. Basically in Nigeria, marriage is a special status-creating contract. This is a basic difference between a commercial and a marriage contract.

Usually in our society, we have the so-called ‘engagement’, which is a misnomer, and in fact a customary marriage celebrated between the same couples before entering into the statutory marriage, which is recognised by the Act and referred to as the double-decked marriage. The Act, however, does not allow the couple in a statutory marriage to thereafter enter into a customary marriage.

There has been a lot of discourse on this issue and we should not forget that the Marriage Act is a 1914 Act that was amended only once in 1971 after the Biafran war; its high time for us to carefully review our marriage laws in Nigeria.

Does the validity of marriage limit the working of the decree of the dissolution of marriage or nullity of marriage?
The dissolution of a statutory marriage has its jurisdiction vested in high court. The dissolution of a customary marriage could be extra-judicial which is at the latitude of the parties unilaterally or by agreement of parties or the judicial dissolution of the marriage, which is done in a customary court according to the particular customary law.

The dissolution of an Islamic marriage entitles the husband to the triple repudiation of the marriage; at the pronunciation of the third repudiation of the marriage the Islamic marriage dissolves.

Where a couple enters into a relationship not recognised by the law, the law refers to it as a void contract, such a marriage is therefore a void marriage without a legal effect. In this case, a decree of dissolution of marriage or nullity of marriage cannot come into play since the parties have not entered into a legally recognised marriage.

Where the marriage has broken down irretrievably as stipulated by the statutes and a party insists on staying in the marriage, what would be the position of law?
Under the statutory marriage according to Section 15(1) of the Matrimonial causes Act 1970, our law is very clear by recognising one ground for the dissolution of marriage, which is that the marriage has broken down irretrievably. For the marriage to have broken down irretrievably which in simple Yoruba language means ‘otiku pata pata’, which means it is dead and beyond redemption. There are certain circumstantial facts that are provided in Section 15(2) of the Matrimonial Causes Act, 1970 that helps the judge to conclude where the marriage has broken down irretrievably. The phrase ‘broken down irretrievably’ connotes a very strong effect; something that cannot be redressed.

It is the duty of the court not to entertain or grant the decree of dissolution when in its wisdom it sees that the marriage has not broken down irretrievably. As much as the law will not want to keep an empty shell, it protects couples from entering into a rushed decision in dissolving their marriage especially where children are involved.

Has there been a situation where the parties have called for a setting aside from an earlier decree of dissolution or nullity of marriage, and would a new marriage be contracted between the parties in this kind of situation?
The law is very clear; the decree of dissolution will become absolute after three months after which the marriage between the parties will be brought to an end through a legal procedure of dissolution of marriage. For such parties to be married again, they would have to go through the same process of marrying under the Marriage Act. If parties can afford to celebrate all over again, they can, because marriage in Nigeria is very costly, as just marrying in the registry is not recognised by our varying traditions; hence the importance of customary marriage as we are expected back in our villages or communities couples will not be recognised as married. We have very strong traditions, our cultures understand marriages as marriages between the families rather between the parties. There is expected to be a marriage between the two families, which is blessed and certified by the two families. I don’t think it is a wise decision to break out from our custom and heritage, as it is our identity which we must be proud of.

What are the limits of the couple in case of a judicial separation?
Judicial separation is provided for in our laws but in reality, very few people opt for it. It will not have the same effect as the dissolution of marriage, which means apart from the cessation of the conjugal rights, all other rights still stand. During the separation, the parties cannot remarry to a third party unless the marriage has been terminated through a decree dissolution of marriage or in event of the death of one of the parties or if the marriage has been annulled by a court of competent jurisdiction.

Has the essence of bigamy in our law been fulfilled in anyway?
A person who is statutorily married under the Act lacks a legal capacity to enter into another marriage, be it customary, Islamic or statutory marriage under Marriage under the Act. The offence of bigamy is a very serious offence; it is a felony, punishable up to 14 years imprisonment by the Criminal Code and also the Marriage Act has its Section 47 and 48, which punishes the offence up to five years imprisonment. These are empty letters in our laws because they are not enforced in the courts.

From the jurisprudential point of view, it is believed that man, law and morality go hand-in-hand and in this situation the effect of the law will be well felt. We are in a society where it is recognised for a man to marry more than one wife. The Nigerian society is potentially polygamous. The monogamy was imposed on us during the advent of the British and their legislation as such, the situation of bigamy is one of the adverse effects. Even though the monogamous marriage is believed to be more recognised and has more glamour, people opt for it, not knowing or refusing to acknowledge at that point that they might not be able to sustain it. Such men end up in polygamy. This is a common occurrence. If you look around, you’ll find out that most of the wives in monogamy discover that their husbands has other unions at the grave-yard when other women will come claiming the same status with her and other children as biological children of the deceased. This is a sad occurrence and as long as our society does not find anything morally wrong with bigamy the law will remain a toothless bulldog. It is interesting to know that from the prosecuting police officer to the lawyer and even with due respect to the learned judge, all of them might be guilty of bigamy. One then asks the question, how could bigamy be controlled in that situation? We have to reconsider the issue of bigamy and I strongly believe that we should have sections that are culturally and religiously sensitive that would make a difference and enforceable.

However in our society, it is uncalled for when a woman to take the father of her children to court for bigamy; as her family and closest friends will not support the decision. Women though are victims of marriages where the husbands commit bigamy, our tradition, culture and society may perceive the act but will not want to enforce their rights.

Is alimony available under our laws?
No. But we have the maintenance order and it is interesting to know that under the Matrimonial Causes Act 1970, both the man and his wife can request for a maintenance order.

By the Nigerian custom that once a woman bears a child she becomes a wife, would the issue of Jactitation of Marriage be appreciable in our system?
Jactitation of marriage is provided for under Section 52 of our Matrimonial Causes Act 1970. A decree of Jactitation of Marriage could be based on the grounds that the respondent, the woman in our case, that bears children for the man outside the wedlock, has falsely boasted and persistently asserted that the marriage has taken place between the man and her. The man has a right to redress in law by asking the court to interfere by making for an order or a decree that the interference from the woman that poses herself as a wife should stop where he feels uncomfortable. Again where a court of competent jurisdiction has dissolved a marriage and the decree of dissolution becomes absolute, the man can sought an order of jactitation of marriage if the former wife embarrasses him with misconduct after their divorce.