A COMPARATIVE INVESTIGATION OF LEGAL AND CUSTOMARY MARRIAGES IN NIGERIA

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A COMPARATIVE INVESTIGATION OF LEGAL AND CUSTOMARY MARRIAGES IN NIGERIA

ABSTRACT

 Marriage is a voluntary contract between two or more people, to be bound together, either by statutory or customary law. Marriage is a concept that has been practiced for centuries and can be dated back to the Genesis Creation account of Adam and Eve back in the Biblical era, as the first ever wedding to exist. There are two systems of marriage in Nigeria which are Monogamous marriage, which consists of statutory marriage, and Polygamous marriage, which consists of Customary marriage and Islamic marriage. This study focused on the challenges that occurred in statutory and Igbo customary marriages and compared the two, in order to arrive at a solution to the research questions that arose during the course of this paper. It was found that the only challenge with statutory marriage was that marriageable age does not have a precise definition under the Marriage act, while customary marriages had challenges such as the issue of succession in regards to the wife and female chikdren, women having to seek parental consent to marry and child marriage. I offered suggestions to review the Marriage Act and Matrimonial Causes Act, as well as codify Igbo Customary Law. In conclusion, this study was concerned with statutory marriage and Igbo customary marriage.

 

 

CHAPTER ONE

GENERAL INTRODUCTION

 

1.1 BACKGROUND TO THE STUDY

 

Marriage is being practiced in countries all over the world and has been practiced for centuries. Marriage is defined by Black Law’s Dictionary as “the legal union of a couple as husband and wife.” It is a legally recognized consensual union between a man and a woman that binds them to become husband and wife. Marriage is one of the few culturally and internationally acknowledged institutions.”[1] Marriage is also a religious foundation as documented in the Bible. In the book of Genesis 2:24 it states that “Therefore a man shall leave his father and mother and be joined to his wife and they shall become one flesh.”[2] Every country’s legislation acknowledges marriage as a formal societal contract, recognizing both parties’ duties, rights, and obligations to one another in order to keep the marriage viable. Marriage is celebrated in Nigeria under either Customary Law or Statutory Law.

 

Monogamous marriage refers to a relationship in which a man is married to just one woman. In Nigeria, this is known as statutory marriage or marriage under the Act. Lord Penzance anticipated this sort of marriage when he defined marriage as the “voluntary union of a man and woman to the exclusion of all others” in the case Hyde v Hyde.[3] “A marriage which is recognized by the law of the place where it is contracted as a voluntary union of one man and one woman to the exclusion of all others during the continuation of the marriage,” according to the Interpretation Act. A person who has a lawful subsisting marriage cannot contract another marriage under the Act with another person, according to Sections 46 and 47 of the Marriage Act. If this is done, the marriage is void.[4]

Polygamous marriage is a relationship in which a man has more than one wife. There is no universal customary law in Nigeria; there are as many different customary laws as there are ethnic groups, even though some of the customs are similar. A custom can be defined as a society’s established or common practice. Not only are the individuals concerned physiologically mature, but they are also traditionally acknowledged by their immediate community as being qualified for holy matrimony.

Character and circumstances are essentially different in these two marriage systems. In order to avoid confusion, it is critical to take this duality into account when considering Nigerian marriage laws. Before applying the relevant law in any issue involving marriage, the lawyer in Nigeria must first determine the type of marriage involved. As can be observed from the Matrimonial Causes Act and the Marriage Act, unlike the customary form of marriage, the Marriage Act only allows a man to take one woman as a legal wife. In the case of Amobi v Nzegwu & Ors, Per Ariwoola JSC stated that “Marriage under the Marriage Act generally means the legal union of a couple as spouses.” [5] However, because of the emergence of same sex marriage in some jurisdictions around the world, the definition of marriage has been modified to include the marriage of the same-sex.

 

This study compares and analyzes the two concepts of marriage, Statutory and Customary marriage, in order to identify gaps in the jurisdiction of marriage and suggest reforms. In identifying these gaps, it will protect children, women and individuals as a whole from the challenges that not reforming the laws would cause on them.

 

 

1.2 STATEMENT OF THE PROBLEM

 

Marriage is a worldwide phenomenon which is respected universally. Marriage has been in existence for centuries upon centuries. Marriage is equally of importance in Nigeria and in some tribes, it can even be made fundamental and compulsory. With the amount of importance marriage holds in our culture, irrespective of if it was celebrated customarily or statutorily, it is essential that the laws that govern marriage are efficient and leave no space for loopholes that will be detrimental to the people who are practicing marriage.

 

This study will show that there are lacunas that need to be filled in both the jurisdiction of statutory marriage and customary marriage. In relation to statutory marriage, the Marriage Act does not adequately define marriageable age. This can bring about loopholes in favor of people who marry underage people, especially girls. The lack of definition of marriageable age is to the detriment of underage individuals.  In Igbo customary marriage, the problems lie in the requirements of such a marriage. The requirements such as parental consent, marriageable age are problems associated with customary marriage because having to have parental consent does not allow an individual to necessarily choose who they want as a lifelong partner which infringes on their right to freewill, if they are adults. The marriageable age in an Igbo customary marriage is now sixteen (16) according to the Eastern Nigerian of Marriage Law (1956),[6] which goes against the Child Rights Act 2015, which defines a child as any person under the age of eighteen.[7] Child betrothal in customary marriages needs to be outlawed as it is against the Child’s Right Act and children are not to be married off.  Succession is also a problem in Igbo customary law in regards to women and illegitimate children. This study will bring about suggestions for the reformation of the laws that govern customary and statutory marriage.

 

 

1.3 RESEARCH QUESTIONS

 

  1. What is the importance of statutory marriage in Nigeria?
  2. What is the importance of Igbo customary marriage in Nigeria?

iii. What are the legal framework of statutory marriage in Nigeria?

  1. What is the legal framework of customary marriage in Nigeria?
  2. What are the challenges confronting statutory marriage in Nigeria?
  3. What are the challenges confronting Igbo customary marriage in Nigeria?
  4. What are the differences between statutory and Igbo customary marriage?

 

 

1.4 AIM AND OBJECTIVES OF THE STUDY

 

The broad aim of this study is to compare and analyze statutory and customary marriages in Nigeria and to fill the lacuna in the laws that govern statutory and customary marriages in Nigeria.

 

The objective of this study is to:

  1. To investigate the importance of statutory and customary marriage in Nigeria.
  2. To evaluate the legal framework of statutory and customary marriage in Nigeria.
  • To determine the challenges presently confronting statutory and customary marriages.
  1. To differentiate between statutory and customary marriage in order to come up with a reform for both of them.

 

 

1.5 SCOPE AND LIMITATIONS OF THE STUDY

 This study is primarily focused on the challenges confronted in both customary and statutory marriages and proposes modifications that would be necessary in the laws that regulate customary and statutory marriage in order to curb such challenges. It also focuses on comparing the two concepts of marriage.

The limitations faced in this study were that there was limited time to conduct more comprehensive research on this subject matter. There were limited number of resources on this subject matter especially on statutory marriage. The lack of social experiment in the study limits the full capacity that the research would have had to offer. By conducting a social experiment, this study could have shown not only the doctrinal effects of the challenges concerning customary and statutory marriage but also the physical and mental effects that these challenges have on individuals especially victims facing these challenges.

 

1.6 SIGNIFICANCE OF THE STUDY

This study is significant both in the academic and practical level. At the academic level, this study is of significance because it educates on the meaning of marriage, statutory and customary marriage and gives a historical background of statutory marriage. It also analyzes the legal framework of statutory and customary marriage and juxtaposes them based on their different requirements for the marriages and on the different challenges they both face.

At the practical level it will expose and offer insight to couples on the advantages and risks of delving into either statutory or customary marriages. It will also sensitize people such as parents from pushing their children into such marriages and educate them on the disadvantages of pushing them into such marriages. It will also educate the people of Nigeria on repugnance in terms of marriage and inform them of the wrongdoing of child betrothal, bride price and other challenges in relation to customary marriage.

As regards to law makers, reading this study will allow law makers to see the importance of being intentional with making the law and to see the dangers of allowing loopholes to be created in the laws that regulate marriages and even other laws.

 

1.7 RESEARCH METHODOLOGY

The research methodology that would be conducted in this research would be comparative and applied method of study. The comparative method would compare laws regulating both statutory and customary marriages, arrive on a conclusion on which is better and argue for a reform for the laws regulating both. The applied method would try to solve the problems affecting the Nigerian community in terms of statutory and customary marriages.

The doctrinal approach, also known as the arm-chair research, will be used to conduct this study. The materials that will be used in this research will be obtained from primary sources of Nigerian family law such as Matrimonial Causes Act 2004, Marriage Act 2004 and Nigerian case law, and secondary sources of Nigerian Law such as Family law books, articles and journals.

 

1.8 LITERATURE REVIEW

To grasp this work, a lot of material will be contemplated during the method involved with assembling this review. The writing works that will be contemplated incorporates court decisions, course readings, expositions, and different works of writing.

The patrilineal system of inheritance in Igboland and the primogeniture rule have been dependent upon legal case. In the case of Mojekwu v Mojekwu, Justice Niki Tobi stated that:

… Any type of cultural segregation on the grounds of sex, aside from being unlawful, is antithetic to a common society based on the principles of majority rules system, which we uninhibitedly pick as a group. … For a law to oppress a specific sex is an attack against Almighty God Himself… I have no trouble in holding that the “Oli-Okpe” custom of Nnewi is offensive to natural justice, equity, good conscience. [8]

The above judgement states that it is unmerited for an individual to not inherit just because of their sex and the possibility that a woman cannot acquire is cultural separation, which ought to be thought of as illegal. Women ought to reserve the option to acquire from their spouses similarly as the Okpe has the privilege to acquire from their late family members.

In his commitment to the marriageable age issue, Itse Sagay had this to say:

There is no proper minimum age of marriage in customary laws. Notwithstanding, most frameworks don’t allow marriage before the achievement of adolescence. This would thus be able to be viewed as the unpleasant least age. The act of child marriage under which a child could be hitched prior to arriving at the period of pubescence is broadly common among the Ibos but has for all intents and purposes ceased…. It ought to be noticed that such relationships would now be void under the Eastern Nigeria Age of Marriage Law (1956) when specified a base age of sixteen for all genders. Any marriage affecting an individual underneath this age is currently void. [9]

Itse Sagay is expressing that the minimum age of marriage is sixteen for all genders, which would be considered as an invalid marriage as long as the individual has not achieved the age of eighteen under the Child’s Right Act. This statement made by Itse Sagay, somewhat posits that Igbo people still practice child marriage, seeing that the minimum age of marriage is sixteen.

M.C. Onokah cited the Customary Law Manual as expressing:

A man is allowed to wed a woman of his decision without the assent of his parent or guardian assuming he is monetarily in a situation to do as such without anyone else. A grown-up man is allowed to wed without first getting the assent of his parent or family head to such a marriage. [10]

M.C. Onokah was placing how men can wed without assent as long as they are monetarily secure. His assertion brings up an issue whether the equivalent can be said about women. Will a woman wed without assent as long as she is financially stable under Igbo Customary Law? The appropriate response is no. Along these lines, this assertion indicates the injustice women face rather than men under Igbo Customary marriage.

Chinua Achebe, in his book “Things Fall Apart” uncovered child betrothal in Igboland when he set:

… Akueke, his stepsister, conveying a wooden dish with three kola nuts and croc pepper… She was around sixteen and just ripe for marriage. Her admirer and his family members overviewed her young body with master eyes as though to guarantee themselves that she was beautiful and ripe.[11]

Chinua Achebe, in his book, is depicting the ordinariness for an Igbo family to part with their child for marriage after the age of sixteen, despite the fact that a sixteen-year-old would in any case be considered as a child under the Child’s Right Act. It also illustrates how normal it is for the female child to be objectified and minimized to being “just a wife.” It is a part of the Igbo culture that the wife of a man is made to be his property.[12]

Concerning the decision of the Supreme Court concerning the right of a female child to acquire the properties of her dad, Igwe Christopher Nnamani of Igbo-Eze South Local Government Area of Enugu State, in an interview with Vanguard, announced that:

The custom is uncalled for to the women and the states’ Houses of Assembly in the South-East should make laws that would domesticate the decision of the Supreme Court.… a few fathers in their wisdom share their properties with their children while alive independent of their genders… The custom has decreased the female child to submissive status in Igboland. [13]

Igwe Nnamani concurs with the decision of the Supreme Court corresponding to the right of a female child to acquire the properties of her father, and accepts that the custom of not considering the female child is unjustifiable to Igbo women and ought to be ceased.

The lacuna that this paper aims to fill is the lack of child marriage cases and prosecutions, not allowing women to inherit, issue of parental consent for women of age.

 

1.9 SYNOPSIS OF CHAPTERS

Chapter One introduces the general idea of customary and statutory marriage.

Chapter Two explores the historical and conceptual framework of statutory and customary marriage such as the meaning of marriage, statutory marriage, customary marriage, inheritance and child betrothal and the historical background of statutory and Igbo customary marriage.

Chapter Three discusses the legal framework of statutory and customary marriage such as Matrimonial Causes Act 2004, Marriage Act 2004 and Nigerian Case Law.

Chapter Four is concerned with the juxtaposition of statutory and customary marriage in Nigeria. It juxtaposes them by differentiating their marriage and dissolution requirements and their various challenges.

Chapter Five concludes this study by giving recommendations as to ways to tackle the challenges of both statutory and customary marriage and arriving at a cessation as to which is better.

[1] H.C. Black, Black’s Law Dictionary: Definitions of the Terms and Phrases of American and English Jurisprudence, Ancient and Modern (Revised 4th edn, West Publishing Co. 1968)

[2] Holy Bible, ‘New King James Verison’, Genesis 2:24.

[3] [1866] LR P & D 130

[4] MA 2004 s46-47

[5] [2013] JELR 34085 (SC)

[6] Eastern Nigerian of Marriage Law (1956)

[7] Child’s Right Act (Enforcement Procedure) Rules 2015

[8] [1997] 7 NWLR 283

[9] Itse Sagay, ‘Nigerian Family Law: Principles, Cases, Statutes and Commentaries’, (Malthouse Press Ltd)

[10] M.C. Onokah, ‘Family Law’ 184

[11] Chinua Achebe, ‘Things Fall Apart’ [1958] 8 p.47

[12] Women’s Aid Collective (WACOL). 13 December 2005. Correspondence from the Executive Director. N.d.a. “Laws and Practices Relating to Women’s Inheritance Rights in Nigeria: An Overview.” [Accessed 28 Nov. 2021]

[13] (2021) <https://www.vanguardngr.com/2020/08/supreme-courts-decision-on-female-inheritance-divides-igbo/> accessed 28 November 2021.

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