FAMILY LAW IN NIGERIA: A TAPESTRY OF MARRIAGES AND DISSOLUTIONS (Part 1). BY GONTUL KENUBEH TIMOTHY, ESQ.

INTRODUCTION

Nigeria, a nation rich in cultural and religious diversity, reflects this heterogeneity in its family law. Family law in Nigeria presents a fascinating and sometimes intricate tapestry woven from diverse cultural, religious, and legal threads. Unlike monolithic legal systems, the Nigerian family law is a multifaceted system of laws that incorporates various aspects of marriage, divorce, and related matters, with each state enforcing its own customary, cultural, or Islamic law. Additionally, the traditional African legislation may be subject to additional local or national customs. This article covers the different types of marriages in Nigeria, their legal frameworks, and the reasons for their dissolution, citing significant legal statutes and case histories.

RECOGNIZED FORMS OF MARRIAGE IN NIGERIA

Family law in Nigeria recognizes three primary types of marriages, each with its unique characteristics and legal implications:

A. Statutory Marriage (Marriage Under the Act): This is a monogamous union, meaning “the voluntary union for life of one man and one woman to the exclusion of all others,” as famously defined in the case of Hyde v. Hyde (1860) L.R.I PD. 130. It is governed primarily by the Marriage Act, Cap M6, LFN 2004 (formerly Cap 218, LFN 1990) and the Matrimonial Causes Act, Cap M7, LFN 2004 (formerly Cap 220, LFN 1990). Usually, a licensed institution of worship (such as a church) or a Marriage Registry performs the solemnization of this kind of marriage. This union forbids either spouse from being married again while the existing marriage is still existing, whether it be statutory, customary, or Islamic. as that will result to the offence of bigamy.

B. Customary Marriage: This union was established in compliance with the local laws and traditions of a specific Nigerian community. Customary marriage is intrinsically polygamous, allowing a man to have more than one wife, in contrast to formal marriage. Nigeria’s many ethnic groups have quite different specialized requirements and rituals. In addition to other customary rituals, it frequently entails paying the bride price. The customary laws that apply in different states, which are frequently unwritten but acknowledged by the courts, govern customary weddings. Mojekwu v Mojekwu (1997) 7 NWLR (Pt.514) 340.

C. Islamic Marriage (Nikah): This type of marriage is celebrated in accordance with Sharia law. It is mainly practiced in northern Nigeria and by Muslim communities throughout the country. If a man treats his wives fairly and justly, Islamic marriages allow him to have up to four wives. According to Islamic jurisprudence, an Islamic marriage is considered valid only if it is preceded by the proposal (ijab), acceptance (qabul), presence of witnesses and payment in dowry (mahr). Islamic marriages do not have any federal laws formalized, but their validity and dissolution are subject to Islamic Personal Law, which is frequently enforced by Sharia Courts.

LEGAL REQUIREMENTS FOR MARRIAGE IN NIGERIA

The legal requirements for contracting a valid marriage differ depending on the type of marriage:

A. Statutory Marriage:

The Marriage Act sets out the requirements for a valid statutory marriage, including:

• Notice of Marriage: One of the parties must give notice of the intended marriage to the Registrar of Marriages in the district where the marriage is to take place. This notice is then published for 21 days. Section 7 of the Marriage Act [MA]
• Affidavit of No Impediment: The parties must sign an affidavit declaring that there is no legal hindrance to their marriage, including existing marriage conditions, prohibited degrees of consanguinity (marrying blood relations) or affinity (marrying marriage relations), or lack of consent. In cases where either party is married to another person by native law or custom, a statutory marriage is nullified under Section 33(1) of the Marriage Act.
• Consent: Both parties must freely and voluntarily consent to the marriage. If either party is under 21 years of age, parental consent is required, as per Section 18 of the Marriage Act.
• Marriable Age: While the Marriage Act does not explicitly state a minimum age, the Child Rights Act 2003 sets the minimum age for marriage at 18 years.
• Solemnization: The marriage must be celebrated in a licensed place of worship or a marriage registry, in the presence of at least two witnesses. Section 21 of MA.
• Certificate of Marriage:  A certificate of marriage is then issued to the parties, recognizing them as legally married to each other. Section 11 of MA.

B. Customary Marriage:

The requirements for a valid customary marriage are determined by the specific customs of the relevant community. Common requirements include:

• Consent of the Parties: Both parties must consent to the marriage. Some customs also have “woman to woman” marriages. Here, a woman who is barren or widowed or for any other reasons, may marry another woman by paying bride price and carrying out other customary marriage rites in order for the new wife to bear children. This custom does not enjoy judicial recognition, see Meribe v. Egwu 1976, 3 S.C 23. 
• Consent of Parents/Guardians: The consent of the parents or guardians of both parties, particularly the bride’s family, is crucial. See Osamwonyi v Osamwonyi (1972) LPELR-2789 (SC)
• Payment of Bride Price (Dowry)/Handing over the bride: This is a fundamental requirement in most Nigerian cultures, though its significance and amount vary. The case of Obi & Ors v Bosah & Ors (2019) LPELR-47243(CA), court held: “it is the law that there are two essentials of a valid marriage. These are payment of bride price and handing over of the bride to the groom.”
• Traditional Rites and Ceremonies: The performance of customary rites and ceremonies, such as family introduction, traditional engagement, and presentation of gifts, is essential.
• Consummation: In some customs, consummation (sexual intercourse) of the marriage is also a vital element and can be seen as the acceptance of both parties to live together.

C. Islamic Marriage (nikah):

It is important to note that Islamic Marriage and customary marriage are not the same, see the case of Khairie Zaidan v Fatimah Khalil Mohssen (1973) LPELR-SC.52/1973

Key requirements for a valid Islamic marriage include:

• Offer (Ijab) and Acceptance (Qabul): A clear offer by one party and an unequivocal acceptance by the other.
• Consent: Both parties must give free and informed consent.
• Dowry (Mahr): The husband must pay a dowry to the wife.
• Witnesses: The presence of at least two sane Muslim male witnesses (or one male and two female witnesses) at the time of the marriage contract.
• Absence of Prohibitions: The parties must not fall within the prohibited degrees of relationship.

In part 2, I will be wrting on the various grounds for divorce under Nigerian Family Law.