Is a 'Court Wedding' Really Necessary? Common Misconceptions about Marriage Under Nigerian Law

INTRODUCTION

Picture this: A and B, having decided to spend the rest of their lives together, exchange vows in a church surrounded by their families, friends and members of the congregation. They receive a document from the church confirming that they are now married. However, after some years, the marriage breaks down irretrievably. Unable to continue living together as husband and wife, they approach the court, seeking an order to dissolve the marriage. To their greatest surprise, the court is instead confronted with the question of whether or not there was in law, a marriage capable of being dissolved in the first place. Elsewhere, C is trying to convince D that they still have to go to the marriage registry, as she believes the traditional marriage they celebrated earlier lacks legal validity.

These two scenarios illustrate common misconceptions surrounding marriage in Nigeria. This essay therefore examines the legal classification of marriage in Nigeria, with emphasis on the misconception surrounding church weddings and the erroneous belief that a customary marriage lacks legal validity in the absence of a subsequent statutory marriage.

The Legal Classification of Marriage in Nigeria

In the case of Ijioma v Ijioma¹, the court defined marriage as the legal union of man and woman as husband and wife.

In Nigeria, marriage may either be classified into two or three types. It may be classified as statutory marriage and customary marriage (with Islamic marriage subsumed under customary marriage), or as three separate categories: statutory marriage, customary marriage, and Islamic marriage.

1. Statutory marriage (otherwise called court marriage or marriage under the Act) is the voluntary union for life of one man and one woman to the exclusion of all others. It is strictly monogamous in nature.

2. Customary marriage, on the other hand, is potentially polygamous. It is a union between a man and one or more women that is celebrated and recognized according to the native laws, traditions and customs of the communities involved.

3. Islamic marriage (Nikah), like customary marriage, is also polygamous in nature. It is conducted according to the tenets of Islamic law (Sharia). However, unlike customary marriage, which does not limit the number of wives a man may marry, Islamic marriage limits the number to four wives, provided he can treat each of them equally.

These are the only three legally valid marriages in Nigeria. Any other kind of marriage is not recognized by law and is considered completely void.

The Church Wedding Misconception

After opting for a statutory marriage, the couple must approach the marriage registry and obtain a certificate from the registrar permitting them to publicly celebrate their marriage. The marriage may be celebrated at the marriage registry, a licensed place of worship, or any other licensed public place. This means a church marriage is valid and recognized under the Act, as held in Motoh v Motoh².

In that case, the court held that under section 21 of the Marriage Act, marriage may be celebrated in any licensed place of worship by a recognized minister of the church, denomination or body to which the place of worship belongs, and according to the rites and usages of marriage observed there, provided the marriage is celebrated with open doors between 8:00am and 6:00pm, in the presence of two or more witnesses besides the officiating minister. Under sections 21 to 26 of the Marriage Act, a marriage celebrated in facie ecclesiae (in a church service) is a marriage under the Act, regardless of whatever additional sacramental significance the church's adherents may attach to it.

Consequently, an ordinary church marriage that does not stem from an approach to the marriage registry has no statutory flavour. It merely gives divine blessing to the couple, according to Niki Tobi JCA (as he then was) in Nwangwa v Ubani³.

Going back to the first scenario, if the couple had not approached the court registry, filed a formal notice of marriage, submitted the required documents, paid the prescribed registry fees, and been issued the registrar's certificate permitting the celebration of marriage in that church, it was just a mere church blessing, and no valid marriage can be said to exist.

Double-Decker Marriage

Reverting to the second scenario, many already validly married couples believe they are not truly married, having celebrated only a customary (traditional) marriage, and insist on also celebrating a statutory marriage. This gives rise to a legal phenomenon known as Double-Decker Marriage: the celebration by the same couple of a marriage under one system, followed by a subsequent marriage under another system.

For example, A and B first marry according to Yoruba customary law, including payment of bride price and other essentials of a valid Yoruba customary marriage. Later, A and B go to a marriage registry and contract a statutory marriage.

Importantly, the customary marriage must come first:

Section 33(1) of the Marriage Act⁴ provides that a subsequent statutory marriage by a person already married under customary law is valid only if it is contracted between the same parties. Section 35⁵ further provides that a person married under the Marriage Act cannot, during the continuance of that marriage, contract a valid customary marriage. Section 47⁶ reinforces this prohibition, prescribing a punishment of up to five years' imprisonment for a person who, while married under the Marriage Act, contracts a customary marriage. The legally accepted order is therefore customary marriage followed by statutory marriage. The reverse order is prohibited, even where the subsequent customary marriage is between the same parties.

The legal effect of a subsequent statutory marriage on the earlier customary marriage has, however, generated controversy. In Jadesimi v Okotie-Eboh⁷, the Supreme Court recognised the common practice of couples undergoing both customary and statutory marriages, observing that the statutory marriage was not intended simply to nullify the earlier customary marriage, but rather to supplement it. Nevertheless, the statutory marriage changes the character of the relationship by imposing monogamy, preventing either party from contracting another marriage during its continuance.

Two principal theories have emerged concerning the status of the earlier customary marriage:

• The conversion theory: the subsequent statutory marriage absorbs or supersedes the earlier customary marriage, causing it to lose its separate legal incidents and consequences.

• The coexistence theory: the customary and statutory marriages remain separate and legally recognised, although the statutory marriage imposes monogamy on the relationship.

In Ohochukwu v Ohochukwu⁸, the court distinguished between the Nigerian customary marriage and the subsequent statutory marriage, dissolving only the statutory marriage and recognising that the customary marriage fell outside its jurisdiction. The coexistence theory is preferred, as it accommodates customary incidents such as bride price. Since bride price arises from the customary marriage and not the statutory marriage, the dissolution of the statutory marriage does not necessarily dispose of all matters arising from the customary union; such matters may require separate determination under customary law.

CONCLUSION

The law recognises statutory, customary and Islamic marriages in Nigeria, each with different requirements and legal consequences. A church wedding is not automatically a statutory marriage, just as a customary marriage does not require a subsequent statutory marriage to become valid. Understanding these distinctions is essential to avoid misconceptions and to ensure that parties appreciate the legal consequences of the marriage they contract.

1. Ijioma v Ijioma (2009) 12 NWLR (Pt. 1156) 593

2. Motoh v Motoh (2011) 16 NWLR (Pt. 1274) 474

3. Nwangwa v Ubani (1997) 10 NWLR (Pt. 526) 559

4. Marriage Act, s 33(1)

5. Marriage Act, s 35

6. Marriage Act, s 47

7. Jadesimi v Okotie-Eboh (1996) 2 NWLR (Pt. 429) 128

8. Ohochukwu v Ohochukwu (1960) 1 All ER 253

Further reading: Amobi v Nzegwu (2014) 2 NWLR (Pt. 1392) 510; "A Critical Appraisal of the Concept of Double-Decker Marriage under the Nigerian Family Law," available at ResearchGate.