There are two types of marriages legally recognized in Nigeria. They are:
a. Marriage under the Marriage Act which is monogamous in nature.
b. Customary Law Marriage also comprising of marriage under Islamic Law which is polygamous in nature.
There are two types of marriages legally recognized in Nigeria. They are:
a. Marriage under the Marriage Act which is monogamous in nature.
b. Customary Law Marriage also comprising of marriage under Islamic Law which is polygamous in nature.
The following are the features of a monogamous marriage:
a. It involves two persons of opposite sex.
b. It must be a voluntary union, that is, it must occur on the basis of free consent of both parties.
c. It is for life, but can be disrupted by divorce or death.
d. It is between a man and woman to the exclusion of third parties.
A monogamous marriage which is the union of one man and one wife to the exclusion of all others has the following pros:
a. Monogamous marriages enjoy relatively more stable and harmonious co-existence.
b. Rivalry commonly found in polygamous marriages is not found in monogamous homes either amongst the wives as there is only one wife.
c. Inheritance controversies are comparatively reduced in monogamous marriages.
d. Infidelity is comparatively low in monogamous marriages.
A monogamous marriage has the following disadvantages:
a. Where a woman is barren, the man is not likely to have a child.
b. There is the danger of extra-marital affair where either party to the marriage is not disciplined enough.
Customary law marriage is predominantly a polygamous marriage. It is the act of marrying multiple spouses that is, having more than one wife at the same time. In Nigeria, the nature of customary law marriage is polygyny marriage, that is, the union for life of one man and one or several women. Virtually, all customary laws in Nigeria do not recognize polyandry, that is the marriage between one woman and more than one man. Kpelanya v. Tsoka (1971) NNLR 66.
A polygamous marriage has the following features:
a. The man has the capacity and right to marry more than one wife.
b. There is no limit to the number of wives that the man can marry.
c. It is intended to last for forever.
d. It requires consent of the parties.
e. It must conform to the customary law of the area where it is contracted.
The following are the advantages of a polygamous marriage:
a. In the event of one of the wives being barren, the man can still have children from other wives.
b. It increases the population of the man’s family.
c. It gives many women the opportunity of being house wives.
Polygamy as a type of marriage is wroth with many disadvantages. The following are the disadvantages of polygamous marriage:
a. There is the danger of broken home as any of the wives or the man may seek to end the marriage.
b. There is frequently an unhealthy rivalry amongst the wives and amongst children.
c. Except extremely rich, the man is always under financial pressure because of the number of children and their attendant needs.
d. There is always the problem of distribution of estate where the man dies except he made a will.
e. There is the danger of contacting sexually transmitted diseases as a result of marital infidelity.
f. Wives are in danger of not being properly cared for materially and sometimes not satisfied sexually.
There are indispensable factors necessary for the validity of a customary law marriage. These factors include:
a. Capacity of parties: Under customary law, the capacity of parties to contract a customary law marriage is dependent on the attainment of marriageable age by the parties and falling out of the prohibited degrees recognized by the society.
b. Consent: The consent of the parties as well as parental consent are the two types of consent required for customary law marriage. Nwehinemelu Okonkwo v. Okagbue & Ors (1994) 9 NWLR (Pt. 368) 301, Osamowonyi v. Osamowonyi (1972) 10 SC 1.
c. Payment of dowry or bride price: The payment of bride price is a sine qua non for a valid customary law marriage. The courts have held that for a marriage under native law and custom to be valid, there must be on the one side, the ceremony of the giving of the dowry and on the other side, the ceremony of the giving of the bride price. Agbeja v. Agbeja (1985) 3 NWLR (Pt. 11) 1.
d. Handing over of the bride: A customary law marriage is inchoate where all the necessary formal requirements of the marriage are not perfected. The actual marriage consists in the handing over of the bride to the husband. The bride is required to be led home or handed over to her husband’s family without which the status of husband and wife cannot be conferred on the parties.
Bride price is any gift or payment, in money, natural produce, brass rods, cowries or any other kind of property whatsoever, to a parent or guardian of a female paid or given on account of a marriage of that person which is intended or has taken place. In other words, it is a gift or payment made by the intended husband’s family to the bride-to-be’s parents. It is an irrefutable consent to a customary law marriage.
Bride price may take the form of gifts or payment. What form or nature a bride price takes, is dependent on the customary law of each area. With the advent of the modern cash economy, bride price predominantly takes the form of monetary payment and payment in other forms of property have become increasingly rare.
The father of the bride-to-be is the person who possesses the legal right to receive bride price. However, where he is unavailable due to death or absence, the right passes on to the male head of his immediate family. Where both men are absent, the girl’s guardian or a person in loco parentis receives the bride price.
There is no customary law that holds that bride price must be paid in full prior to the marriage celebration or solemnization. However, part payment of it must be made before the performance of a valid customary marriage. This goes to say that the validity of a customary marriage does not depend on full payment of the bride price before the marriage.
The payment of bride price is an essential requirement for the validity of a customary law marriage. Where waiver relates to the payment of only a part of the bride price, no serious legal problem arises because some consideration has in fact been made for the marriage. The position is different where the whole bride price is waived. A complete waiver of bride price may affect the validity of a customary law marriage. Nickaf v. Nickaf Unreported Suit No. CA/K/79/84.
No, the terms bride price and dowry are not synonymous to each other. While bride price refers to any gift or payment to a woman’s family by the man in respect of the bride before or at the time of marriage, dowry refers to the property, money brought by a bride to her husband.
The position of the law is that not every gift or payment made by the groom’s family to the bride’s family constitutes bride price. Mr. Uwem Isong is only liable in law to the one million which was paid as bride price as the cash gifts were nothing more than presents to the family of the woman and a claim for the refund of the gifts or presents cannot be maintained in law as property in them had passed to the bride’s family and as such is irrecoverable in law. Okoriko v. Otobo (1962) WRNLR 48.
The actual marriage ceremony consists in the handing over of the woman to her husband after all other requirements for a customary law marriage have been met. The celebration or solemnization of a customary law marriage often takes place in the presence of witnesses who inform the world about the marriage and change of the status of the parties married. Witnesses are significant as they may be called upon in the future in proof of the existence or otherwise of such marriage. The proof of facts of the celebration of a customary law marriage - the eating, drinking and dancing ceremony by all witnesses present - in the court of law gives rise to a valid marriage. N. v. D. (Customary Marriage) (2015) EWFC 28.
That is why it has become necessary that pictures and videos of the celebrations be recorded and kept. Even the Embassies of countries may ask for it in support of a claim of couples applying for visa and claiming to be married under customary law.
The legal effects of a marriage under native law and custom are the following:
a. Consortium: The spouses in a customary law marriage are entitled to each other’s consortium. Thus, they are entitled to each other’s company and society and do owe each other a duty to submit to the other’s reasonable sexual needs and demands.
b. Mutual protection: Under customary law. each spouse is entitled to each other’s mutual protection and assistance in cases of danger to life and limb.
c. Enticement: The enticement of a spouse of customary law marriage by a third party confers on the other spouse a right of action for damages for the loss of services and companionship of the enticed spouse. Solomon v. Chukwuani (1972) 2 ECSLR 619.
A husband is entitled to recover damages from a man who commit adultery with his wife, from a person who induces his wife to leave him and a person who harbors his runaway wife without just cause if it is proved under customary law. However, it is unclear whether a woman has a corresponding right over the woman whom the husband commits adultery with or the man where he abandons the home and elopes with another woman. Erurhobare v. Otebrise (1971) 1 UILR 33.
There are marriages that are invalid or unlawful from the beginning due to the presence of some legal defects and they are:
a. A marriage where the bride price has not been paid, unless, the payment was waived.
b. A marriage where there was absence of parental consent. This is because the same parent that gives his consent is the one to collect the bride price of the daughter which is an essential element of customary law marriage.
c. The general rule in some areas of the country is that marriage is forbidden between persons who are related by blood, no matter how remote the relationship is. Although the degrees of consanguinity for marriage under customary law is much wider than those applicable to marriage under the Marriage Act, it is still an element that can invalidate a customary law marriage. With regard to affinity, customary law prohibits marriage of a man with persons to whom he is related through marriage.
The only recognized case of voidable marriage under the customary law marriage is child marriage which is however practiced under the Sharia Law. Where a bride to be is an infant, her consent is given by her father or person guardian, where her father is absent. However, where she attains the age of maturity, she can either confirm the validity of the marriage or make it void. Where she refuses to be a party to the marriage, her parents are compelled to refund to the husband her bride price.
There are no rigid or established rules on how a customary law marriage can be dissolved unlike the statutory marriages which can only be dissolved by the court. Customary marriages can be dissolved judicially and non-judicially and not by mere wishful thinking or assertion. Ezeaku v. Okonkwo (2012) All FWLR (Pt. 654) 159.
The non-judicial method of dissolution of a customary marriage is carried out informally without the formalities of any judicial process. It is undertaken by parties, usually with the knowledge and participation of members of the families of the couple who may at the point be at daggers drawn or at least in an active state of animosity. A customary law marriage can be dissolved either unilaterally or by mutual consent subject to the refund of the bride price. The non-judicial method of dissolving a customary law marriage:
a. Refund of bride price: The family of the wife refunds the bride price to the husband or his family. Once the bride price is refunded and accepted, the marriage is taken to have been dissolved. Although the refund and acceptance of bride price go together, the husband may decide to renounce his right to the refund of the bride price, if this happens, the marriage will still stand dissolved. Renunciation of right to claim a refund of bride price where a customary marriage is dissolved must be done formally and unequivocally, before the joint families. The marriage will be regarded as dissolved from the time of renunciation and there will be no need for the bride price to be actually refunded. Thus a customary law marriage cannot be dissolved by wishful thinking or by effluxion of time where the bride price has not been refunded except renunciation is established. Ezeaku v. Okonkwo (2012) All FWLR (Pt. 654) 159. The refund of the bride price puts to an end to all incidences of customary law marriage and not an order of court dissolving the marriage. Eze v. Omeke (1977) 1 ANLR 136. Refundable bride price diminishes according to the duration of the marriage. Ossai Okaluda v. Omema (1960) WNLR 149.
b. Mutual agreement by parties: This occurs when the parties have noticed obvious differences in their lives and that they cannot live together as efforts have been made by their extended families to resolves those differences but failed. The parties decide to end the relationship in the presence of their family members and once this is agreed, the marriage will come to an end subject to the refund of the bride price. Where parties are unable to agree on the quantum of bride price to be refunded, the husband may resort to the customary court for a determination of his right.
c. Unilateral actions: This can happen in several ways either by the husband or wife, by the husband throwing his wife’s properties away and asking her to leave his house on which basis the wife packs her things and returns to her parent’s home, the husband may arrange a meeting where he duly informs his in-laws of his intention to bring the marriage to an end, the husband may abandon the matrimonial home and inform the wife that the marriage is over, a wife may take all her personal belongings and leave the matrimonial home and inform the man that the marriage is at an end, the woman may get involved in promiscuity while still in the husband’s house or the wife may run away from the matrimonial home as a result of beatings by the man and vow not to go back. The main flaw of this is the absence of record of the time at which and condition in which the divorce occurred.
d. Dissolution by death: The death of the wife puts an end to a customary law marriage. This is however not the case where the husband dies. The woman continues to be the wife of the family until some ceremonies or steps are performed or taken to dissolve the marriage. The woman may choose to remain in her late husband’s family as their wife without being inherited by anybody, she may remain and be inherited by another member of the family, she may decide to go back to her parents’ home and remain there while still bearing wife of the late husband or she refunds the bride price and remarries another man. The court however has held that death terminates a customary law marriage and it is a mere fiction to suppose that the marriage is subsisting.
Consequently, any custom which restricts the widow from remarrying or having an affair until some fetish ceremonies was performed was repugnant to natural justice, equity and good conscience. Yesufu v. Okhia (1976) 6 E.L.S.L.R. 157.
Unlike dissolution of statutory marriage, there is no uniformity with regards to the grounds for dissolution of a customary law marriage in Nigeria. It is dependent on the prevailing customs and traditions of each tribe or community. Some jurisdictions have itemized some grounds for dissolution of customary law marriage in Nigeria. In practical terms, some grounds for dissolution of customary law marriages are common to majority of the communities including barrenness, adultery, cruelty, desertion and abandonment, impotency, stinginess, persistent and willful refusal to have sexual intercourse, commission of offences such as incest, murder, stealing, disrespect to the in-laws, use of charm, juju, engagement in witchcraft, incapacity to have normal sexual relations and infection by one with incurable disease.
No. Presents, gifts or other items given to the wife or her parents or any money spent at the funeral or ceremony of any parent of the woman are not refundable with the bride price when a marriage is at end. Okoriko v. Otobo (1962) WNLR 48. All other claims or debts, other than the bride price, such as refund of money spent on clothes for a spouse can only be recoverable in a separate suit as debt when supported by valid documents under the extant bye law. Okaludo v. Omama (1960) WNLR 149.
Levirate marriage refers to the marriage where a deceased’s relative, for instance, the brother marries the deceased’s widow in order to raise a child in the deceased’s name. This can only happen where a woman has no child for the deceased. Where a woman has had a child for a man before he died, levirate marriage cannot exist since the deceased already has a child to perpetuate his name.
Generally, in most systems of customary law, the father of the child has absolute right to custody of the children of the marriage. This is based on the fact that a father is the owner of the children and cannot contest the ownership with the wife no matter the circumstances. Upon his death, the male head of the father’s family is vested with that right, although the day to day care of the children may be the responsibility of the mother. However, where the children are still of tender age in need of motherly care and affection, the children are kept in the custody of their mother until they can be properly and safely separated from their mother and returned to their father. Although the superior rights of a father to custody of a child is recognized, this right will not be enforced where it is shown to be detrimental to the welfare of the children. Okwueze v. Okwueze (1989) 3 NWLR (Pt. 108) 321.
The best interest and welfare of a child is the prevailing legal principle followed by customary courts in the grant of custody after the dissolution of marriage. The welfare of the children of the marriage with regards to their peace of mind, happiness, education and co-existence is of paramount importance in permitting custody. Buwanhot v. Buwanhot (2011) All FWLR (Pt. 566) 522.
The welfare of a child is not the material provisions in the house, good clothes, food, air-conditioners, television, all gadgets normally associated with middle class, it is more of the happiness of the child and his psychological development. While it is good for the child to be brought up by the complimentary care of the two parties living together, it is psychologically detrimental to a child’s welfare and ultimate happiness and psychological development if the maternal care available is denied him. The interest of the child is defined to include the welfare of the child, education, security and overall well-being and development of the child. Odogwu v. Odogwu (1997) 2 NWLR (Pt. 225) 239, Udosote v. Udosote (2012) 3 NWLR 478.