UNDERSTANDING THE BASIC PRINCIPLES OF A VALID MARRIAGE AND THE GROUNDS FOR DIVORCE IN NIGERIA
For anyone to have a firm grasp and appreciation of the topic under discourse, it is imperative to make an exposition as to what really constitutes a valid contract of marriage in law within the Nigerian context.
A contract of marriage is essentially an agreement or understanding made between two consenting adults, who have the requisite capacity to live together in the relationship of husband and wife for life until the formal termination of the relationship, i.e divorce.
Put differently, marriage entails a posture, agreement or understanding with reciprocal rights and obligations made between two adults, who understand the nature of the agreement and consents thereto.
It has also been described as a universal institution recognized and respected all over the world. It is a social institution founded and governed by the social and religious norms of the society.
For marriage to be said to be valid in law, it must be proved that the persons involved are man and a woman, or man and women as it relates to polygamous marriages in Nigeria. In other jurisdictions, the situation may be different as marriages of persons of the same sex may be recognized as valid. Thus in Nigeria, there are basically two notable types of marriages namely: marriages that are contracted under the Act and Customary law marriages inclusive of Islamic marriages or marriages conducted in registered religious places of worship.
VALIDITY OF MARRIAGES:
The validity of any form of marriage in Nigeria is determined by the compliance to the requisite requirements of that form of marriage. Thus, once a marriage is properly contracted in accordance with the rules guiding that form of marriage, then, it is safe to say that the marriage is valid in law.
Under the Customary law, there are certain essential requirements of a valid customary marriage viz:
[a] Consent of Parents: The consent of the Parents is indispensable to the validity of a customary marriage. However, it must be stressed that while consent of the parents of the Groom may be dispensed with, it is not so in the case of the Bride. the reason being that, it is the parents of the Bride that perform the Marriage in that they are usually in receipt of the Dowry and consequently give out their Daughter. In this wise, if they do not give consent, then there will be no valid customary marriage.
However, the requirement of consent of the parents of the bride has been modified by some States. Thus, by section 5 of Marriage, Divorce and Custody Adoptive Bye laws 1958 WRLN, as applicable in the western Nigeria, if the Bride is up to 18 years and She is willing and ready to marry and Her Parents unnecessarily withholds consent, an action could be taken against her parents, requesting them to show cause why they should refuse consent or refuse to accept the bride price and if the Court considers that there is no reasonable cause for refusing consent, the Court may order that the marriage should proceed.
[b] Consent of Parties: The Consent of the parties to the marriage is essential to the validity of a customary marriage. Whenever, the parties are capable of expressing their consent to the marriage, such consent is expressly demanded and obtained before the marriage could be celebrated. In respect to Child marriage, when the bride becomes of age, she may refuse to continue with the marriage and choose to opt out of it. The modern approach is that parties agree in advance to marry each other and then communicate the agreement to their parents. It would appear that lack of consent of the parties may render the marriage voidable.
The above principle of law which stipulates that lack of consent vitiates a marriage contracted under the customary law has been judicially anointed in OSANWOYI V OSANWOYI. In this case, H got married to W, under the marriage Act in 1968. H, petitioned for divorce on the ground that 1964, W was married to C according to native Law and custom. It was found as a fact that C paid dowry of #60.00 [Sixty naira] to W’s Father without the knowledge and consent of W. W rejected the marriage to C. it was held that there was no valid subsisting marriage between C and W under the customary law. By the same token, consent must be express and not implied.
[c] Bride price: The giving of Bride price is also referred to as Dowry, which is the consideration, and an essential requirement to the validity of a customary law marriage. It is so vital that a refund of same marks the threshold dissolution of the marriage. It confers legality to the marriage. Traditionally, there is no fixed amount as bride price. The amount to be paid is usually negotiated between the families of the parties and sometimes it depends on the status of the bride. It legitimizes a marriage under customary law. It must also be emphasized that it is not the amount that matters as any amount agreed and paid would suffice.
It is noteworthy, that it is not every payment or gift made by the Groom to the Bride’s family that qualifies as bride price. See OKORIKO V OTOBO.
[3] Age: generally speaking, there is no fixed age for marriage under the customary law, but as a matter of practice, the age of the marriage is the age of puberty which cannot be precisely stated. However, under the Child rights’ Act, a Girl who attains the age of 18 years is ripe for marriage. Hence, has met the required age prescribed by law. Other factors which are essential to the validity of a customary marriage includes: prohibited degrees of relationship, e.g. consanguinity. Usually, marriage is prohibited among blood relations. The prohibition varies from one ethnic group to another.
Similarly, marriage is prohibited if there is a certain degree of relationship between a man’s wife or former wife and the intended wife. However, this latter rule admits some exceptions; thus, a man depending on the custom may be allowed to marry his deceased wife’s sister or relation. Again, a Man on the death of his Father may inherit and marry his father’s widow but is expressly prohibited from getting married to his biological Mother.
DISSOLUTION OF CUSTOMARY LAW MARRIAGE:
There are no developed and stringent rules on dissolution of customary marriage unlike statutory marriage which could only be dissolved by the Courts. Customary law marriages could be dissolved through the traditional ways without any formalities. This could arise through refund of bride price, mutual agreement, or by unilateral actions, or through the courts or even by death.
On refund of bride price, as soon as the family of the wife refunds the bride price to the husband or his family, once it is accepted, then the marriage is taken to have been dissolved. See ANIOKWU & ANOR V ANIOKWU & ANOR, [2009] LPELR-8754[CA].
It is also instructive to note that parties may notice obvious differences in their lives and that they can no longer cleave together as husband and wife. In that regard, parties can then decide to end the relationship and see if they could make up elsewhere with a fresh relationship. Once, it is agreed, the marriage is said to have come to an end subject to refund of bride price. For this to happen, there must real intentions to so divorce.
Another mode in which a customary marriage may be dissolved could be that the husband may throw his wife’s properties away and ask her to leave his house on the strength of which she packs and returns to her parents House. Thus in OKPANUN V OKPANUN, It was held thus:
“It is sufficient for a husband to arrange a meeting where he duly informs his parents in law of his intentions to bring the marriage to an end”.
In the same breadth, where the matrimonial dispute could not be resolved by the parties, they are at liberty to approach the Court and have the marriage dissolved if any of them considers that he or she can no longer continue with the marriage. This is dissolution by judicial process.
DISSOLUTION OF MARRIAGE UNDER ISLAMIC LAW:
Dissolution of an Islamic marriage occurs in two notable circumstances:
[1] When both the husband and wife mutually agrees on separation. In that case, the husband could divorce the wife with no difficulties subject to terms if any as may be agreed upon between them. On the other hand, if it is the wife who wants to divorce, and the husband agrees, subject to conditions as may agreed between both of them, then difficulties may not arise. The couples may not even have recourse to a law court.
[2] It also arises when the wife wants to get a release from the marital ties. This is a situation where the husband may appear to agree to “khul” and insists on the subsistence of the marriage inspite of his resentment to it. In such a situation, it is only the wife who is desirous of the termination of the marriage. If the husband refuses to agree “khul”, or if the couple cannot agree to terms on which the marriage is to be dissolved, as in the instant case, the questions which must be resolved are:
[1] Can anything at all be done in such a case?
[2] Is the wife entitled to get a separation, and under what circumstances?
[3] Can the Kadi dissolve notwithstanding the husband’s insistence that he wants the marriage to continue?
The principles that guide the dissolution of the marriage through “khul” are as follows:
[a] whether the husband is at fault [dharar] and
[b] Whether the Kadi is bound to dissolve the marriage if it is established that a harmonious married life is impracticable.
STATUTORY MARRIAGE:
Section 69 part IV of the matrimonial causes Act, defined statutory marriage thus:
“Marriage” includes a purported marriage that is void, but does not include one entered into according to Muslim rites or other customary law”.
This definition was adopted in JABRE V JABRE [1999] 3 NWLR [PT.596] 606. Thus, it could be seen that marriage under the Act, excludes marriage contracted pursuant to Muslim rites or other customary law.
It is noteworthy that one of the prerequisites of a marriage under the Act is the existence of the marriage certificate issued by the registrar of marriages following the celebration of the marriage.
In CHUKWUMA V CHUKWUMA [1996] 1 NWLR [PT.426] 543; The Court of appeal held that, the registrars certificate is a prerequisite to the celebration of a valid statutory marriage because section 33 of the marriage Act clearly stipulates that a marriage celebrated between the parties shall be null and void if both parties knowingly and willfully acquiesced to its celebration without a registrars certificate of notice of license under section 13 duly issued. Thus, any purported celebration of marriage which to the knowledge of the parties has not been preceded by the issuance of the registrar’s certificate is ineffectual, null and void. See EJIKEME V EJIKEME, ANYAEGBUNAM V ANYAEGBUNAM, [1973] 4 SC 121.
DISSOLUTION OF A STATUTORY MARRIAGE:
The cradle to the dissolution of a statutory marriage is that the petitioner must plead and prove to the satisfaction of the Court that the marriage has broken down irretrievably. This is by virtue of section 15(1) of the matrimonial Causes Act. He would then predicate his petition on any of the facts listed in section 15(2) (a)-(h) of the matrimonial causes Act, 1970.
Yet, the law enjoins the petitioner not to commence an action for dissolution within two years of the marriage unless such a petition falls within the precincts of the exceptional circumstances prescribed by law. This is what is commonly known as the two years rule.
In EKEREBE V EKEREBE [1993] 3 NWLR [PT.596], It was held that for a petition for a divorce to succeed, the petitioner must plead and prove one of the facts contained in section 15[2] [a]-[h] of the matrimonial causes act. If the petitioner therefore, for any reason fails to plead and prove any of the facts stated in the law, the petition must be dismissed even if the dissolution of the marriage is desired by the both parties.
CONCLUSION:
Marriage is as old as man and consequently, it is an institution set up by God for procreation and other allied purposes. But interestingly, what may appear “sweet” often times may turn sour. In such a given circumstance, parties are at liberty to pull out from the union in so far as it is done in accordance with the tenor of the laid down laws regulating the conduct of such a union since neither of the parties could be compelled to continue with such a union.
Contact our team of expert family lawyers if you are faced with marital challenges for professional guidance.
