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Essentials for Validity of Statutory Marriage in Nigeria

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Essentials for Validity of Statutory Marriage in Nigeria

There are personal requirements that parties intending to contract statutory marriage must meet. These are marriageable age, prohibited degrees of consanguinity and affinity, marriage status, consent, sanity.

  • Age of the Parties:
  • Although the Marriage Act does not specify the minimum age for Marriage under the Act, the combined effects of Sections 11 (1) (b), 18, 19, and 20 of the Marriage Act[1], the minimum age is twenty-one years since the Act states that any party less than 21 years old must obtain the consent of the parents or guardian.
  • Section 3 (1) (e) of the Matrimonial Causes Act 2004[2] declares a marriage void where either of the parties is not of marriageable age. In Elias v. Elias[3] the court held that full age under Nigerian law is the common law age of 21 (twenty-one) years irrespective of the voting age of 18 yrs. But Section 21 Child Rights Act 2003[4] provides that no person under age 18yrs is capable of contracting a valid marriage and any marriage so contracted is null and void and of no effect.
  • There is a conflict between this provision and those of the Marriage Act. Learned author Nasiru Tijani[5] has argued that the Marriage Act should prevail over the Child Rights Act since the former is a specific statute on the subject of marriage.
  • Single status
  • Where there is a subsisting marriage either statutory or customary, to another person, the subsequent marriage is void[6]. The party may also be liable to imprisonment for a term of five years and seven years under the Criminal Code Act.[7] An exception is where the subsequent statutory marriage is between the same parties married under customary law.
  • Prohibited degrees of consanguinity and affinity
  • The parties must not be within the prohibited degrees of consanguinity (Blood relations) and affinity (relations by marriage) as stipulated in Schedule 1 of the Matrimonial Causes Act. It is immaterial whether the relationship is of the whole blood or half blood or whether it is traced through a person of illegitimate birth.
  • An exception is made to the affinity prohibition rule. Persons within the prohibited degree of affinity wishing to marry can apply in writing to a High Court Judge for permission to marry each other.[1]
  • The judge may by order permit such marriage if he is satisfied that there is an exceptional circumstance justifying the same. The rule does not say if the restriction to marry ends with the termination of the marriage upon which the affinity relationship is founded.

Consent of the parties and Parental Consent

Where there is absence of consent or if the consent is obtained by fraud, duress, or if either of the parties is mistaken as to identity or the nature of the ceremony, or is of unsound mind, the marriage is void.[2]

  • Consent of parents is not necessary for validity of marriage where the parties are 21 years and above. However, where either party is less than 21 years old, parental consent is a requirement for validity. In Agbo v. Udo.[3] The plaintiff contracted a statutory marriage with his wife. The plaintiff later petitioned the court for the dissolution of the marriage on the ground of his wife’s adultery with a co-respondent. The co-respondent contended that the wife was a minor at the time of the marriage and that no parental consent was obtained as required by the law.
  • Consequently, there was no valid marriage between the petitioner and the respondent which the Court could might dissolve. The Court held that notwithstanding the absence of parental consent the marriage was valid under section 33 (3) of the Marriage Act.[1]

In other words, lack of parental consent is not a violation of any provision of section 33 of the Marriage Act which can make a marriage null and void after celebration. Note that while the absence of parental consent does not vitiate the marriage, it is an offence punishable by 2 years’ imprisonment for any person fully aware of the absence of the absence of such consent to marry or to assist or procure any other to marry the minor.[2]

Where consent is required, such consent must be written consent of the father or mother where father is dead or of unsound mind or absent from Nigeria. Where, both parents are dead, of unsound mind or absent from Nigeria, then the consent of the guardian is required. Where no parent or guardian is available to give consent, consent may be given by a State Governor or a High Court Judge or any Officer above the grade of Assistant Secretary in the Civil Service.[3]

  • Sanity

Parties to statutory marriage must be sane. Where one of the parties is insane and therefore mentally incapable of understanding the nature of the marriage contract, the marriage is void.

[1] This section validates all marriages except those invalidated in preceding subsections of the section

[2] Section 48 and 49 of the Marriage Act

[3] Marriage Act, s.20

[1] Matrimonial Causes Act 2004, s.4(2)

[2] Matrimonial Causes Act 2004, s. 3(1)(d) Buckland v Buckland (1967); Mehta v Mehta (1945) 2 All ER 690

[3] (1947) 18 NLR 152

[1] Marriage Act Cap. M 6 Laws of the Federation of Nigeria, 2004

[2] Cap. M7 Laws of the Federation of Nigeria, 2004

[3] (2001)9 NWLR (Pt. 718) 429

[4] Cap. C. 50 Laws of the Federation of Nigeria 2004

[5]N Tijani, Matrimonial Causes in Nigeria. 2nd Edn. (Lagos: Renaissance Law Publishers Limited, 2017) p. 4-8

[6] Matrimonial Causes Act s. 3(1)(a). It will also constitute bigamy. Onwudinjoh v. Onwudinjoh (1957-58) 11 E.R.L.I; Obele Iniya v Obele (1973) 1 NMLR 155

[7] Marriage Act section 46, Criminal Code Act section 370

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