•How To Contract A Valid Marriage
The right to family life is a constitutionally guaranteed right of every Nigerian citizen. Hence, this right is protected by the sanctity of Marriage. Marriages validly contracted in Nigeria can be generally classified into 3 main categories which are the Customary, Islamic and Statutory marriages. These marriages are all valid and recognized by the Nigerian constitution with none of these marriages more superior to the other.
Nevertheless, the Nigerian law seems to protect parties in statutory marriages reason being that this marriage is a creation of the law. This article is essentially to break down the components of each of these marriages to enable the readers the opportunity to examine the validity of their marriages.
Customary marriage is a marriage that is negotiated, celebrated and concluded according to any of the systems of indigenous customary law which exist in Nigeria. The marriage must be contracted strictly in accordance to the traditions and customs of the locality of the couple principally that of the bride. Nigeria, being a country of people with divergent customs and traditions presents a torrent of customs, usages and traditions governing marriages relative to each community. However, there are a lot of basic similarities that are common to most of these communities regarding marriages. Essentially, a valid customary marriage in Nigeria must possess the following fundamentals:
CAPACITY:
Intending couples must possess the mental and physical capacity to perform a customary marriage ceremony. In most Nigerian cultures, marriage between close family members and people related by marriage is strictly prohibited and will not be valid. Although there is no prescribed age limit for customary marriage in Nigeria which has encouraged child marriages in some cultures, it appears that the minimum age now is 18 years due to the adoption of the Child’s Right Act 2003. However, this will only be applicable to states that have domesticated the Child’s Right Act into their state laws which is presently operated in twenty-four states of the federation and the Federal Capital Territory.
CONSENT:
A strict requirement of Customary marriage is the consent of the bride’s family and the intending couple. In most cultures, in an event that the bride’s father is dead, the consent of the most senior male member of the family must be sought and granted before the marriage can take place. Further, the consent of both of the prospective couple must be obtained to validate the marriage.
BRIDE PRICE:
The most significant pre-requisite of a Customary marriage is the payment of the bride price which is also referred to as the dowry to the bride’s father or the most senior male member of the family by the groom or his family. It is usually in monetary form but may also be natural produce or a property. For a customary marriage to be valid, the bride price must be paid. However, there is a trend amongst some families especially the Yoruba people who in turn return the money paid as bride price to the groom’s family. This action will not invalidate the marriage because what is significant is that the bride price was paid and received by the bride’s family. It is inconsequential that it was returned by the bride’s family.
HAND OVER:
The bride must be physically handed over to her husband’s family by her parents to signify the completion of the ceremony.
It is imperative to state that only a couple who performed a customary marriage which involves all the pre-requisites listed above can be said to be married. Mere living together regardless of the length of time will not automatically confer the status of marriage on the couple. Further, a customary marriage performed between a Nigerian citizen and a foreigner is invalid because the application of customary law in the marriage may occasion substantial injustice to either of the parties. It is also worthy of note that a distinguishing factor of a customary marriage is that it is potentially polygamous in nature. A man in a customary marriage is permitted to marry more than one wife but polyandry is prohibited.
Regarding the evidence of the celebration of a customary marriage, it is a misconceived notion that customary marriages generally cannot be registered. Contrary to this opinion, section 30 of Birth, death, e.tc (Compulsory Registration) makes it mandatory for a customary marriage to be registered within sixty days of the celebration at the customary court in the district where the ceremony was performed. It is particularly important for couples who married only under the customary marriage to ensure that their marriage is registered. Witnesses at the marriage and photographs taken at a wedding may be a good form of evidence but the most reliable form of evidence that the marriage indeed took place is to register it formally. I have witnessed a party to a customary marriage who denied the existence of the marriage between him and his wife. He insisted that he only performed an Introduction ceremony and not a customary marriage ceremony.
STATUTORY MARRIAGE
A Statutory marriage which is also referred to as Marriage under the Act is a creation of the law which is rooted in the English law. It is the voluntary union of one man and one woman to the exclusion of all others. The applicable law which regulates the marriage is the Marriage Act, federal legislation. It is essentially monogamous and procedural in nature which must be strictly adhered to. In local parlance, it is commonly referred to as the “white wedding or court wedding”. However, there is only one type of marriage envisaged under the Marriage Act. The only difference is the choice of venue of the celebration of the marriage. It can be celebrated at a licensed place of worship or the Registrar of Marriage’s office. As a preliminary step, anyone who is desirous of getting married under the Act either in the licensed place of worship or the Registrar’s office must give notice to the Registrar at the Federal marriage registry in his locality. The Registrar is mandated to register the Notice given in the Notice book which will be published in the court premises for a minimum of twenty-one days. After the expiration of twenty-one days and on the payment of the prescribed fees, the Registrar will issue a Marriage Notice certificate to the parties. However, the intending couple must depose to an affidavit that they are not related by birth neither are they related by marriage before the Marriage Notice certificate is issued to them. The affidavit must include that they are both over twenty-one years old. In an event that one of the parties is below the age of twenty-one, parental consent must be sought and granted except if that party is a widow or a widower. Also, it must be stated that one of the parties has been resident in the district for more than fifteen days immediately preceding the application. Another requirement of the affidavit is that both parties have not previously been married under the Act to any other person. Once the Notice certificate is issued, it is advised that the intending couple proceed to marry immediately because the Notice is only valid for three months.
After the mandatory Marriage Notice Certificate has been obtained by the intending couple, the couple is at liberty to choose to celebrate the marriage either at the Marriage Registry or a licensed place of worship. This venue of the marriage celebration is very fundamental to the validity of the marriage. Any marriage ceremony which takes place outside of these two places is null and void and of no effect if the intending couple intentionally and willfully committed the error. The only exception is if a special license was granted by the Registry authorizing the marriage to be celebrated at a designated venue. Couples who desire to marry at a designated venue other that the venues stated above must ensure a special license is obtained from the Registry. This is usually a blank certificate which will be filled by the officiating minister stating the venue of the marriage and the name of the officiating minster and a copy is usually returned to the Registry for filing.
Marriages held at the licensed places of worship are commonly referred to a “white wedding”. It must be held in strict adherence to the law for the marriage to be valid under the law. Any marriage which does not adhere strictly to the law is at best a customary marriage, a nullity and of no effect. A marriage contracted at a licensed place of worship must be conducted by a recognized minister of that denomination and in the presence of minimum of two witnesses. To explain further, for example, a minister of the Catholic Church cannot conduct a marriage ceremony in the building of a Methodist church, vice versa. Also, only an ordained minister who is recognizable from that denomination can contract the marriage. It must be celebrated within eight o’clock and six o clock with open doors. It must be celebrated inside of the church building and not anywhere else.
It should be noted that the preliminary procedure discussed above must be observed before the marriage can be contracted in the church. The Certificate of Notice issued at the Registry must be delivered to the church before the minister proceeds on the other formalities involved. It is an offence for a Minister to contract a wedding without a certificate of notice. It is the duty of an intending couple to ensure that the proposed church where they intend to contract their marriage is duly licensed by the government. This is advised because licenses expire, can be withdrawn or deliberately not renewed by the government. Couples should not assume that the church is licensed rather, where possible, the licensed should be verified. For easy reference, churches should display their licenses in conspicuous places within the church building for verification by intending couples.
Another issue which is vital in the celebration of a marriage at a licensed place of worship is the marriage certificate issued. The only valid certificate recognized and authorized by the Marriage Act is the one issued by the Ministry of Interior through the Chief Marriage Registrar. The trend where churches issue their own printed certificates to couples is unlawful. The Certificate book in accordance with Form E of the Marriage Act emanates from the Principal Registrar to the Ministers for dissemination to couples and must be in the custody of the Ministers. The Minster must fill the certificate in duplicates and signed by the couple. A copy must be given to the couple while the other copy must be transmitted to the Registry for filing within seven days of the marriage ceremony. It is the role of the church to transmit the certificate to the Registry and not the couple as it is the practice.
Another option available to intending couples is to celebrate the marriage at the Registrar’s Office which is the Federal Marriage Registry in their district. It must be celebrated in the Registrar’s office between ten in the morning and four o’clock in the evening with the doors open. A copy of the Marriage certificate is given to the couple while the a copy is subsequently filed at the Registry.
Failure to adhere to the strict provisions of the law can render the marriage invalid, void or voidable. Also, parties who contravene the law are criminally liable for various offences.
Written by,
Olamide Onifade,
Senior partner, Olamide Onifade & Associates,
149, Ogudu road, Ogudu, Lagos.
Email; barristerolamideonifade@gmail.com
Telephone: 0909 333 5636.
