The institution of marriage though divine has secular operations. It is a sacred union, hence, the laws that provide for its celebration and contingencies. The court in Hyde v Hyde defined marriage as the voluntary union for life of one man and one woman to the exclusion of others until divorce or death. However, customary marriage gives room for the union of one man and two or more women.

In Nigeria, one can contract either customary marriage or statutory marriage. Native law and custom governs customary marriages. On the other hand, statutory marriages are regulated by the Marriage Act and Matrimonial Causes Act. Both marriage forms can be contracted by the same parties provided that the customary marriage precedes the statutory marriage (Section 11(d), 33, 35 and 46 of the Marriage Act).

The practice of celebrating statutory marriage before customary marriage on the same day to minimize cost constitutes an offence with a prison term of 5 years (Section 47 of the Marriage Act). A person who is married to someone under native law and custom cannot marry a different person under statutory law (Section 46 of the Marriage Act). In SARAH E.O. GREEN v ADEL SAPARA, an intended statutory marriage between a lady and the caveatrix husband was ordered not to hold by the court when the caveatrix proved that there was a subsisting customary marriage.

Matrimonial causes resulting from customary marriages are resolved at the Customary Courts. Therefore, reliefs available to the subscribing parties are quite different from statutory marriages. Customary laws generally apply to natives of Nigeria or persons of Nigerian descent except non-application would amount to substantial injustice. This makes void any customary law marriage celebrated between a Nigerian and a non-Nigerian.

In the case of SAVAGE v MACFOY (1909) Renner’s GCR 504, the Yoruba wife of a deceased native of Sierra Leone, claimed that she was entitled to administer his property having been married under Yoruba customary Law. The Court held that the deceased had no capacity to contract a valid customary law, his acquisition of a domicile of choice in Nigeria notwithstanding.

Similarly, the court declared void an Efik customary law marriage celebrated between a Portuguese and an Efik lady where she sought to administer his property in FONSCECA v PASSMAN (1958) WRNLR 41.  

A number of requirements must be met for a customary law marriage to be valid. To start with, the bride price of the lady must be paid unless subsequently waived by the bride’s parent. Also, the actual ceremony must take place followed by the formal taking of the girl to her husband’s home.

On the contrary, the first port of call for parties that intend to contract statutory marriage is the Marriage registry. The procedure is spelt out in sections 7 – 30 of the Marriage Act. Notice of Marriage in Form A shall be signed and given to the Registrar by one of the parties to the intending marriage. The Registrar shall enter the notice upon its receipt in the Marriage notice book and shall afterwards publish the notice on the outer door of his office. The publication is to serve as notice to anyone who knows any just cause why the marriage should not take place to enter a caveat against the issue of the Registrar’s certificate, that is, Form C.

Where a caveat is entered, the Registrar shall not issue his certificate. Rather, he shall refer the matter to the Judge of the High Court of the State. The Judge may upon his findings after hearing all parties, cancel the caveat and order that the Registrar’s certificate be issued else the marriage shall not hold. In Re-Intended Marriage of Beckley and Abiodun (1943) 17 NLR 59, the father of the intending groom entered a caveat on the ground that he was married to another lady under the customary. The court held that the Registrar’s certificate ought to be issued because the alleged customary marriage was invalid.

The Registrar is required to issue his certificate after the expiration of 21 days but before the expiration of 3 months from the date of the notice of marriage. Also, celebration of marriage must take place within 3 months from the date of the notice of marriage. Where a marriage is not celebrated within this period, the notice and all proceedings become void. Therefore, the intending couple shall give fresh notice before they can lawfully marry.

Subsequent upon the receipt of Registrar’s certificate, the marriage may be celebrated in a licensed place of worship or Registrar’s office. It can also be celebrated in some other place authorized by the minister under marriage by special licence. Special licence does not require giving notice of marriage or collecting Registrar’s certificate.

Celebration of marriage in the Registrar’s office shall be before a Registrar in the presence of two witnesses between the hours of ten o’clock in the forenoon and four o’clock in the afternoon. Thereafter, the Registrar shall issue a marriage certificate in Form E.

Parties may choose to celebrate their marriage in a licensed place of worship between the hours of eight o’clock in the forenoon and six o’clock in the afternoon and in the presence of two or more witnesses. Such celebration shall be presided over by any recognized minister of the church, denomination or body to which such place of worship belongs and according to the rites and usages of marriage observed there. The recognized minister shall then issue Form E to the parties.

Celebration of marriage in a church without more is a mere church marriage. In the eyes of the law, such marriage has no legal status. It is neither statutory marriage nor customary marriage. For a marriage to qualify as statutory marriage, it must be celebrated in conformity with the Marriage Act and Matrimonial Causes Act.

Section 33(3) provides that statutory marriages cannot be invalidated by all procedural defects save those adumbrated in section 33(2). Knowledge of the defect in the marriage procedure and wilful acquiescence to its celebration by both parties renders it null and void.  The courts have held that a marriage is still valid where one or both parties were ignorant of the defects. Therefore, the onus is on the party alleging that the couple had such knowledge to prove it.

Hence, where both parties knowingly and wilfully acquiesce to celebrate their marriage under false name or names or in a place other than a licensed place of worship or registrar’s office or without registrar’s certificate or by a person who is not a recognized minister of the religious body where the marriage was celebrated or is not a registrar of marriages, such marriage shall be null and void.

Registrar’s Certificate is an important document which could be used in proving statutory marriage in the absence of form E. The minister shall be recognized by the religious body under which the marriage is celebrated. For instance, a recognized minister of People of God International Church cannot solemnize marriage in God is Good Church.

It is noteworthy that section 23 explains the phrase “licensed place of worship” to mean a building which has been duly licensed by the Minister of Interior. It follows that licence to a particular church denomination does not extend to its branches. Any church branch that seeks to celebrate marriages should independently apply for grant of marriage licence. It follows that licence granted to the headquarters of People of God International church, Sagamu does not cover the church branch in Okokomaiko or any other branch.

In the case of Aiyegbusi v Aiyegbusi (unreported), the petitioner alleged that the parties were married at the Ayeye Hall of Jehovah’s Witnesses in Ibadan which was not licensed to celebrate marriages. The court held that the defect would have nullified the marriage if there was evidence that either of the parties was aware of the defect.

The only determining factor to the validity or otherwise of statutory marriage is knowledge of the defects in section 33(2) by one or both parties. There is a rebuttable presumption of validity of marriage if subscribers to statutory marriage intended to contract a valid marriage under the Act. On this note, many marriages have been held by the Courts to be valid.

© Lastinghills 2020. All Right Reserved1

© Lastinghills 2020. All Right Reserved.

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