16/01/2022
FROM THE CLINICIANS’S DESK::::::::::::::::::::::::
THE MISCONCEPTION OF NIGERIANS WITH REGARDS TO STATURORY MARRIAGE: Existence And Validity Of “Church”, “Court” And “Customary” Marriages.
According to the learned author E.I Nwogugu in his book, titled “Family Law in Nigeria” the term “Marriage” is sometimes used to denote three different situations vis the agreement to marry, the act of being married (the ceremony by which a man and a woman become husband and wife), and finally, the state of being married (which is the relationship between a husband and a wife).
Legally, two types of marriage is recognised under the Nigerian law, that’s Marriage under the Act, also known as Monogamous Marriage or Statutory Marriage, and secondly, Customary Marriage.
Monogamous Marriage has been established in the English case of Hyde v Hyde as a voluntary marriage for life of one man and one woman to the exclusion of all others until divorce or death. This does not however, mean that marriage celebrated in churches but not in accordance with the Marriage Act is a monogamous marriage, this definition only applies to Marriage celebrated in accordance with the provision of the Marriage Act 1914, so that, any marriage celebrated outside it, would operate based on The rules that applies in such church or to such other marriage, thus where the rules of the church allows for the marriage of more than one wife, then, the man may marry more than one wife, and the woman cannot claim to have celebrated a monogamous marriage, except such marriage was celebrated in accordance with the provisions of the Marriage Act.
Thus, legally speaking, there is nothing like “Church Marriage”, any marriage not celebrated in accordance with the Marriage Act (hereinafter referred to as “the Act”) is a marriage celebrated in accordance with the natives and customs of the particular place or church.
Customary marriage on the other hand, is the union for life of one man and one or several woman, and for this purpose, Islamic law marriage is subsumed under customary law marriage.
It should be added here that parties whom after celebrating a customary marriage, had their marriage solemnized by the minister of church, but not in accordance with the provisions of the Act, are not married under the Act, so that the polygamous marriage so celebrated is not converted to a statutory marriage, such marriage remains a customary marriage, irrespective of whether they were granted the church marriage certificate by the Minister.
The question then is “When is a marriage celebrated under the Act?”, and this shall be discussed below
1. Formal Validity Of A Statutory Marriage
For there to be a valid statutory marriage, which can be enforced, the Act requires the following:
1. One of the parties to the intended marriage must sign and deliver to the registrar of marriage of the district in which the marriage is proposed should take place, a notice as in Form A in the first schedule to the Act.
2. The registrar may after twenty days and up to three months from the date of the notice, on the payment of the prescribed fee, and after the party has dispose to an affidavit, issue his certificate (Form C in the first schedule to the Act) to the applicant; OR
The parties may in place of a registrar’s certificate, obtained special licence from the Federal Ministry of the Ministry of Internal Affairs.
1. Armed with the registrar’s Certificate, the parties may then, approach a recognised Minister of Religion of a Licence public place of worship (a church that is licensed by the Federal Ministry of Internal Affairs), or a Marriage Registrar in his office , where the marriage is celebrated and a certificate (Form E in the first schedule to the Act) is issued, it is immaterial that the church certificate is issued in addition to the certificate in Form E; OR
2. The marriage may be celebrated under a special licence issued by the Federal Minister of Internal Affairs in accordance with 29 of The Marriage Act 1914.
The failure to comply with the provisions stated above render such marriage null and void, that it is not a statutory Marriage and cannot be enforced, and this is buttress under S. 33 (2) of the Act, which state as follows:
A marriage shall be null and void if both parties knowingly and wilfully acquiesce in the celebration –
1. In any place other than the office of a registrar of marriages or a licensed place of worship (except where authorised by the license issued under S. 13 of this Act); or
2. Under a false name or names; or
3. Without a registrar’s certificate of notice or license issued under S. 13 of this Act duly issued; or
4. By a person not being a recognised minister of some religious denomination or body or a registrar of marriages.
5. S. 33 (3) of the Act attempts to save a marriage from being declared invalid by providing thus: “But no marriage shall after celebration, be deemed invalid by reason that any provision of this Act other than [those set out in S. 33 (2)] has not been complied with.”
It surely won’t be out of place to discuss what the Act meant by “Knowingly and wilfully” acquiesce in the celebration of the marriage: Following the old but standing maxim “ignorantia legis neminem excusat”, that’s ignorance of the law is no excuse, it is submitted that the Act could not have intended to displace this, and by adding knowledge as an element (mens rea), Knowledge referred to in S. 33 (2) of the Act refers to facts set out in the subsection, not of law.
Also, Araka J. in Ajih v. Ajih, stated that “The provisions of the Marriage Act are there for everyone. Ignorance of the Act cannot, and will not, be any defence in law.” Thus, ignorance of law is different from ignorance of fats, the two are distinct, and should remain so.
Bitterly, most of our judges who has made a spoken remark on this subject envisaged that the subsections refer to knowledge of law.
This is evidenced in the judgements of Ainley CJ. in onwudinjoh V. onwudinjoh, Idigbe J. IN Akwudike V. Akwudike, Palmer J in Obiekwe V. Obiekwe Obiekwe, and Agbakoba J. in Akparanta V. Akparanta.
S. 33 (2) of the Act pardons parties to a monogamous marriage from having their union rendered non-statutory if they can prove that they did not knowingly and wilfully acquiesce in not complying with the formalities required by the Act.
Knowledge has been divided into actual, constructive and imputed knowledge.
Peter Gibson J. stated that knowledge include any one of the following:
1. a) Actual knowledge;
2. b) Wilfully shutting one’s eyes to the obvious;
3. c) Wilfully and recklessly failing to make such inquires as an honest and reasonable man;
4. d) Knowledge of circumstances which would indicate the facts to an honest and reasonable man;
5. e) Knowledge of circumstances which would put an honest and reasonable man on inquiry.
While Actual knowledge is a straight-forward thing, whether or not constructive knowledge should be applied to marriage should depend on whether or not the parties had sufficient time to obtain facts which good sense imposes on him.
Thus, any such person who runs into statutory marriage without inquiring into what the law demands would come within category c above, and knowledge will be constructed on his part. Imputed knowledge on the other hand, arises where a person acts through the agency of another, and with regards to statutory marriage, it is submitted on the authority of Martins v. Adenuga, that a party who relies on a prospective spouse’s assurances and fails to verify the truth should not be allowed to escape the legal consequences of his/her actions.
1. Celebration Of A Statutory Marriage
With regards to the phrase “CELEBRATION OF MARRIAGE” used in the Marriage Act, it is submitted on the authority of Ss. 21-23, 27-28, and 29 of the Act respectively, that the Act does not involve marriage in accordance with native law or church sacrament or social feast, for a marriage to be tagged a marriage celebrated in accordance with the Act, and as a Statutory/Monogamous marriage, it must be in accordance with the provisions of the sections stated above, that’s must be celebrated either:
1. In a licensed public place of worship, not just any kind of public place of worship (church), and this can only be done after obtaining the registrar’s certificate in Form C in the First Schedule to the Act or a special licence in Form D of the first schedule to the Act. Notably, the registrar’s certificate is not proof of marriage or the certificate of marriage (Form E in the first schedule to the Act), and this marriage must be solemnized by an authorised recognised minister of the particular licensed public place of worship, not just any minister of the licensed place of worship, else the marriage will be invalid. The marriage must be celebrated with open doors between the hours of 8a.m and 6p.m, and in the presence of two or more witnesses besides the officiating minister, after which the certificate marriage in Form E shall be issued to the couples; this is the valid certificate of marriage.
2. Thus, if this is not issued, and only the church marriage certificate is issued, then, parties should know that the public place of worship is not a licensed pace of worship, and the minister is not recognised as such, and the minister may be punished under 47 of the Act for officiating a marriage he is not licensed to solemnized, or for solemnizing a marriage that the registrar’s certificate has not been issued to the prospective spouses.
This establishes the fact that parties who intends to be married both under the law, and for their marriage to be solemnized by a Minister of God, can do so, if they conform with the provisions of the Act.
In a registrar of marriages’ office and this must be after the parties had obtained the registrar’s certificate (Form C in the first schedule to the Act) or special licence(Form D in the first schedule to the Act), again, registrar’s certificate is not marriage certificate.
The marriage may be solemnized by a registrar of marriages in his office, if the parties intend so, and do not which to have their marriage solemnized by a minister of God, and the fact that the parties after celebration of marriage at the registry, still go to church to obtain the church blessing and the church marriage certificate, does not add any effect to the valid statutory marriage, nor does it render it void.
In addition, two witnesses must witness the marriage in the registrar’s office, with open doors, between the hours of 10:00am and 4p.m, after which the marriage certificate (Form E in the first schedule to the Ac)t will be issued to the parties
To this extent, it is established that there exist nothing called “Court Marriage” in Nigeria; marriage successfully celebrated at the Marriage Registry is a “Statutory/Monogamous Marriage, or better still, Marriage under the Act”
The special licence issued under the Act may direct how the marriage shall be celebrated after which the parties will obtain the marriage certificate (Form E in the first schedule to the Act)
The effect of a statutory marriage is that the marriage is bound by law and can be enforced at law, and may only be dissolved by law and without its dissolution, neither of the parties may contract any valid marriage with a third party, doing that will render such person liable under criminal law for bigamy, and under the Act, is liable to five years imprisonment, and the third party is also liable to five years imprisonment under S.39 of the Act if he/she contract such void marriage with knowledge that the other is still under a subsisting valid statutory marriage.
What then is the status of parties who haven married under customary law; proceed to marry under the Act?
The answer is given below:
The Validity OF Conversion Of Customary Marriage To Marriage Under The Act.
Going by the express provision of S.35 of the Act, customary marriage is duly recognised and valid, and the parties are bound by such natives and custom, and by S.33 (1) of the Act, parties, that is husband and wife of a customary marriage may validly marry under the Act following the provisions of the Act, and such marriage shall become a statutory marriage bund by law, but the marriage must be between the very parties that married under customary law.
Where the man is married to more than one wife under customary law, then he must dissolve his marriage with all other wives, and marry one of the wives under the Act, he cannot proceed to marry under the Act without dissolving his other marriage(s), because marriage under the Act is a monogamous marriage, and same where the woman he wishes to marry under the Act is not yet married to him under customary law, he must dissolve all his prior marriages according to the native rules and customs, the marriage dissolutions must be valid, where the dissolution is not in accordance with the particular customary law under which he was formerly married, then such marriage continue to subsist, and any marriage celebrated under the Act will be void.
S.33 (1) of the Act is the authority for this, it provides that; No marriage in Nigeria shall be valid, where either of the parties thereto at the time of celebration of such marriage is married under customary law to any person other than the person with whom such marriage is had.
S. 46 of the Act then provides that; whoever contracts a marriage under the provisions of this Act, or any modification or re-enactment thereof, being at the time in accordance with customary law to any person other than the person with who such marriage is contracted, shall be liable to imprisonment for five years.
The implication of these provisions is very clear like a sea of glass, thus any marriage under the Act by a party who is still validly married under any particular customary marriage is void, and such parties to the monogamous marriage may be punished under the law, while the customary marriage will continue to be valid, until a valid divorce. Where there has been a valid divorce of the customary marriage, then both parties may proceed to marry under the Act.
