Legal Clinic: An Appraisal of Marriage under Nigeria Law (Part 2) by Abdulqowiy Odewale

Welcoming you to the second part the marriage orientation article written by a Lawyer in embryo, Abdulqowiy Odewale. The part one that was posted on Tuesday, October 3rd delt with the Statutory marriage. But today, customary marriage will be examined.

  1. CUSTOMARY MARRIAGE.

    Nigeria comprises diverse ethnic groups with different customs and cultures which effects the existence of various and diverse customary marriages in the country. However a general and prominent one among these marriages which an issues relating to it solemnization as well as divorce are well attended to and entertained in the court of law on bases of non repugnant to natural justice, equity and good conscience will be discuss.

    In Aku v Aneka, the Court of Appeal defined custom as an unrecorded tradition and history of people which has grown to stability with the growth of people and eventually become an intrinsic part of their culture. Therefore Marriage under customary law to the writer can be defined as a union consolidates in accordance to culture, tradition, norms, values and history of particular society.

    Marriage under customary law creates a relationship not only between a man and woman but also between the two families involved. The wife is regarded by the members of her husband’s family as having been married not solely to her husband but into the family and therefore a member of their family. The husband on the other hand is not so regarded by his wife’s maiden family, even though there exists a continuing relationship with that family.

    Marriage under Customary Law is largely polygamous. A polygamous marriage is the union of one man with several wives. There is no limit to the number of wives a man can marry under customary law. It must be noted however that many couples initially get married under customary law and thereafter marry under the Act. This is valid, provided the marriage is between the same persons.  The legal implication of such marriage is that it would have to remain a monogamous marriage. Section 47 of the Marriage Act provides that where a man is married under customary law with one woman and subsequently marries another different woman under the Marriage Act, the second marriage is void.

    Moreover, in this kind of marriages after intentions to marry has been communicated between the two parties concerned and also between their respective families, discreet inquiries may be carried out by each of the families in order to discover facts about the parties. These facts may sometimes be based on the family’s social and health background as well as the character of the party. For example, investigations may be carried out to find out if the family concerned has any contagious or hereditary disease such as eye deficiency, mental problem ; whether the person concerned has bad habits such as stealing or lying; or whether the family concerned belongs to the system of outcasts known as Osu (amongst the Ibo’s). Some of the facts found may constitute bars to the proposed marriage.

    As it is in statutory marriage, the solemnization of the union under this marriage also has some prerequisite which are: betrothal, capacity of the parties, consent of the parties and the parents, bride price, solemnization of the marriage and consumption of the marriage. Which shall be skimmed into in the paragraphs above.

    I. Betrothal : The families concerned must be of a clear thought that there are no facts that could hinder the marriage, the betrothal, which is the formal engagement of the parties will now take place. The engagement usually consists of a formal process of agreement to marry between the prospective spouses, the giving of consents. After the betrothal then actual marriage takes place.

    2. Capacity of the parties.

    No customary law in Nigeria evidently and clearly specify the age for the solemnization of customary marriage. This lacuna in the rule of customary law has created a lot deficiency in traditional marriage and to a large extent encouraged a high incidence of child marriage, with all its attendant are evils. In some areas, child betrothal is rampant but marriage does not in fact take place until the parties have attained the age of puberty. There is no doubt that

    that there were a lot of child marriages under customary law because there is no law against child marriage but since the passing of the Child’s Rights Act 2003, no marriage of persons below the age of eighteen is allowed under Nigerian Law – section 21 of the Act. The implication of this section is that any children been forced to marriage either by parents or guardian may sues such person to court of law for breaching his right under the Act.

    3. Consent of the parties and parents.

    Hence,  in the case of Osamwonyi v. Osamwonyi 1973 NMLR 26 the Supreme Court held that under Benin Native Law and Customs, the consent of the parties was necessary for a valid marriage under customary law. Parental consent is also necessary before a valid customary marriage can take place. In Okpanum v. Okpanum 1972 2 ECSLR 561, the High Court of East Central State of Nigeria held that in order to constitute a valid customary marriage, there must be parental consent and mutual agreement between the parties. Furthermore, under section 361 of the Criminal Code Act, it is an offence punishable with seven years imprisonment for any person who with the intent to marry a female person of any age or to cause her to be married by any other person takes her away or detains her against her will. With the above provision and decision of the courts it is crystal clear that consent of the intending couples and parents are germane in the solemnization of customary law. Suffices to say that any marriage consolidate without such consents will be declare as void by the court of law.

    4. Bride price: Is one of the essential requirements of a valid customary marriage. The bride price includes any gift or payment in the form of money, natural produce or any kind of property given by an intending husband and his family to the parents or guardian of a female person on account of the marriage. Payment of bride price is an important element in customary  marriage. In Edet V. Essien (36) . The wife of Mr. A who had got married to him under  Efik native law and custom left him to live with Mr. B. Where upon she  had two children for Mr. B from this illicit union. Mr. A consequently claimed the ownership of these children in accordance with Efik customary law. The children borne by deserted wife who has not refunded her bride price belonged to the deserted husband and the wife will still be regard as the wife of the appellant i.e Mr A. The Court held that it was contrary to natural justice, equity and good conscience to allow Mr. A to claim the children of Mr. B just because Mr. A had been deprived of his wife and without a refund of the bride price he paid on her. The bottom line here is that a customary marriage is valid even if the wife has married another man until the bride price is refund.

    5. Solemnization of the marriage: solemnization or celebration is an essential ingredient of a valid customary law marriage. It generally involves breaking kola, leaking salts, honey, palm oil, suckling sugarcane, pouring libation, sharing drinks and other activities. The bride is invariably handed over to the bridegroom and his family. This is equally a significant requirement as any customary marriage that fails to meet this condition can be declared void by the court on the ground of not meeting nherequirements of a valid customary marriage, as it was reinstated by the Court in the case of Omoga v. Badejo 1985 NCNLR 1075, that there must be a formal handing over of the bride to the groom in the presence of the two families and witnesses and the acceptance and taking away of the bride to her husband’s house for marriage under Yoruba Native Law and Custom, to be valid.

    6. Consummation of the marriage.

    Consummation simply means having sex, with a view to making a marriage complete. In customary marriage it is very essential, in Nigeria  traditional societies the very night of the marriage is eagerly awaited by the groom’s family as he is expected to announce his exploits to his family and state if his wife was found intact or not.

 

About Jare Tiamiyu

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