Anaya Nolan
In Nigeria, there are three recognized marriage systems: statutory (English) law, customary law, and Islamic law. The validity of a common-law marriage in Nigeria depends on the law of the state in which the ceremony takes place. For example, a customary law marriage may be valid in Nigeria, but if the ceremony takes place in England, it may not be recognized as a marriage due to non-compliance with English law.
| Characteristics | Values |
|---|---|
| Number of legal systems governing marriage | 3 |
| Legal systems | Statutory (English) law, Customary law, Islamic law |
| Nature of statutory marriage | Monogamous |
| Nature of customary marriage | Polygamous |
| Governing law for statutory marriage | The Marriage Act, The Matrimonial Causes Act, The Matrimonial Causes Rules |
| Governing law for customary marriage | Native law and custom |
| Jurisdiction for termination of statutory marriage | High Court |
| Jurisdiction for termination of customary marriage | Customary Court |
| Validity of customary marriage outside Nigeria | Not recognised |
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What You'll Learn
What is a statutory marriage?
In Nigeria, there are three recognised marriage systems: statutory (English) law, customary law, and Islamic law. A statutory marriage is a monogamous union governed by the provisions of the Marriage Act, a federal law that regulates the contracting and celebration of statutory marriages in the country. It is defined as "the voluntary union for life of one man and one woman to the exclusion of all others". This means that a man can only be married to one woman, and a woman can only be married to one man at a time.
The Matrimonial Causes Act, another federal law, regulates and determines matters arising from statutory marriages, including divorce, separation, custody, and maintenance. The Matrimonial Causes Rules are a set of rules made by the High Courts in Nigeria pursuant to the Matrimonial Causes Act for the management and determination of cases arising from statutory marriages.
A statutory marriage is different from a customary marriage, which can be polygamous and is governed by native law and custom. Customary marriages are terminated in a Customary Court, while a statutory marriage can only be terminated in the High Court.
It is common in Nigeria for couples to first marry under customary law before solemnising their union with a statutory marriage. This practice is known as a "double-decker" marriage, and there is debate over whether the statutory marriage supersedes or merely coexists with the customary marriage.
A statutory marriage in Nigeria is considered invalid under the following circumstances:
- If any of the parties are already married under any customary law before the statutory marriage.
- If the marriage is celebrated in a place other than the Registrar's office or a licensed place of worship without a special license from the Minister of Internal Affairs.
- If the parties enter the marriage under false names.
- If the parties do not obtain a Registrar's Certificate of Notice or Minister's License before the marriage.
- If the marriage is solemnised by a person who is not a recognised clergy of a licensed place of worship or a Marriage Registrar.
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What is a customary marriage?
In Nigeria, there are three recognised marriage systems: statutory (English) law, customary law, and Islamic law. A customary marriage is governed by native law and custom, and it is often polygamous in nature, meaning a man can have one or more wives. In some cases, it also allows one woman to marry multiple husbands. The native law and customs of communities across Nigeria govern customary marriages, including issues of inheritance, divorce, and other related issues.
Customary marriages are terminated in a Customary Court, whereas a statutory marriage is terminated in the High Court. The statutory marriage is monogamous and is governed by the Marriage Act, the Matrimonial Causes Act, and the Matrimonial Causes Rules.
It is common in Nigeria for couples intending to marry under statutory law to first marry under customary law. This is known as a "double-decker" marriage. In these cases, the statutory marriage supersedes the earlier customary marriage, although there is a minority view that the two marriages coexist.
Customary marriages are not always recognised outside of Nigeria. For example, if two Nigerians living in Nigeria participate in a customary marriage ceremony in England, that ceremony will not be recognised as a valid marriage under English law.
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How does customary law affect Nigerians in other countries?
Customary law in Nigeria is derived from indigenous traditional norms and cultural practices. It is not static and changes to suit the needs of the community. It is also not uniform across Nigeria, with laws varying between communities, even within the same ethnic group.
Customary law is applicable in matters involving only Nigerians, and it is not to be applied in cases between Nigerians and non-Nigerians. However, there are exceptions to this rule, such as in the case of Nelson v. Nelson, where the application of English law would have resulted in injustice, and so customary law was applied instead.
Customary law is also recognised in other countries with Nigerian communities, such as in the English case of HASMITA JAWAHAR GANDHI -v- MANGAL VIJAYALAXMI PATEL & 5 ORS [2002] 1 FLR 603, where a Nigerian customary law marriage ceremony was performed in England. However, for a Nigerian customary law marriage to be valid in another country, it must comply with the law of that country.
The Nigerian Institute of Advanced Legal Studies (NIALS) has taken steps towards a restatement of Nigerian Customary Law, particularly in the areas of marriage, inheritance, land tenure, and chieftaincy in various geopolitical zones of Nigeria. This project aims to identify and document the position of custom across Nigeria, including any changes between customary law as documented and as accepted and practised by those affected.
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What are the requirements for a valid statutory marriage?
In Nigeria, there are three recognised marriage systems: statutory (English) law, customary law, and Islamic law. A statutory marriage is monogamous in nature, meaning that a man can only be married to one woman, and a woman can only be married to one man at a time.
The requirements for a valid statutory marriage in Nigeria are as follows:
- The marriage must be between a man and a woman.
- Neither party should be married to another person under any customary law before the statutory marriage.
- The marriage must take place at the Registrar's office or a licensed place of worship, unless a special license is obtained from the Minister of Internal Affairs.
- Both parties must provide their full names. The marriage will be invalid if either party knowingly enters the marriage under a false name.
- A Registrar's Certificate of Notice or Minister's License must be obtained before the marriage.
- The marriage must be conducted by a recognised clergy of a licensed place of worship or a Marriage Registrar.
In addition to the above, there are several documents that are required for a statutory marriage in Nigeria. These include:
- Indigene Letter/Letter of Identification from the State of Origin (for Nigerians only).
- Sworn Affidavit of Bachelorhood from a Federal High Court/Bachelorhood Certificate (if bachelor).
- Affidavit of Marriage (if already married).
- Evidence of Divorce - Decree 90 and Decree Absolute (if divorced).
- Death certificate of a previous spouse (if widowed).
- Evidence of Annulment from a Federal High Court (if the previous marriage was annulled).
- Sworn Affidavit of Single with Child/Children from a Federal High Court (if single with child/children).
- Data Page of International Passport (if living abroad).
- Arrival Passport Stamp Page (if living abroad).
- Residence Permit (if living abroad).
- Birth Certificate or Declaration of Age.
- Passport Photograph.
It is important to note that a statutory marriage in Nigeria is governed by the provisions of the Marriage Act, the Matrimonial Causes Act, and the Matrimonial Causes Rules. These laws regulate the contracting, celebration, and termination of statutory marriages, as well as related matters such as divorce, separation, custody, and maintenance.
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How do you terminate a common-law marriage?
In Nigeria, there are broadly two types of marriage: statutory marriage and customary marriage (which includes Islamic marriage). The process of terminating a marriage in Nigeria depends on the type of marriage.
Terminating a Statutory Marriage
The High Court has exclusive jurisdiction to terminate a statutory marriage. The law provides a clear procedure for exiting a statutory marriage. Exiting a statutory marriage can take two forms: separation or divorce. Separation is a temporary state of exiting the marriage without the right to marry another person, while divorce is a permanent exit from a marriage that gives the right to marry another person to all parties.
Terminating a Customary Marriage
A customary marriage can be terminated in a Customary Court or Area Court. There are two methods to terminate a customary marriage: the non-judicial method and the judicial method. The non-judicial method involves terminating the marriage without a court order or a judicial procedure. This method involves an agreement between the parties to the marriage and their families. The wife discusses with her parents or representatives of her family the need to end her marriage, and the wife's family representatives will then meet with the husband's family to discuss the termination of the marriage. The judicial method, on the other hand, involves obtaining a court order for the dissolution of the marriage. A petition can be brought to dissolve a customary marriage on various grounds, including adultery, impotency, betrothal under the marriageable age, ill-treatment, cruelty, leprosy or other harmful diseases, witchcraft, addiction to crime, and desertion.
It is important to note that, in the case of double-decker" marriages, where a couple has both a statutory marriage and a customary marriage, the termination of the statutory marriage may not affect the continued existence of the customary marriage.
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Frequently asked questions
There is no such thing as a common-law marriage in Nigeria. There are three types of recognised marriages in Nigeria: statutory marriage, customary marriage, and Islamic marriage.
A statutory marriage is a monogamous union between a man and a woman, governed by the Marriage Act, the Matrimonial Causes Act, and the Matrimonial Causes Rules.
A customary marriage is governed by native law and custom and can be polygamous, with a man marrying one or more wives. In some customs, a woman can marry another woman to bear children.
Yes, it is common in Nigeria for people to have a customary marriage before contracting a statutory marriage. This is known as a "double-decker" marriage.
No, a Nigerian marriage, whether statutory or customary, is not recognised as a valid marriage in England.
