Extracts from What the Law Says About Marriage and Divorce

What is marriage under the Act?

This is one of the three types of marriage[1] that may be entered into in Nigeria. Marriage under the Act is also known as the statutory marriage or English law marriage. Some people loosely refer to it as “legal marriage”, “white wedding”, “registry marriage”, “court marriage” or “church or Christian marriage”. But above all, it is a monogamous marriage, because, unlike other forms of marriage in Nigeria, once a person enters into it, such person cannot enter into another marriage with any other person for life, unless the first marriage is dissolved through a court action or one of the spouses dies. 

            It is this form of marriage that was defined as “[…] the voluntary union for life of one man and one woman, to the exclusion of all others.” This definition was given in 1886[2] and it has not changed in Nigeria to date.

So, in Nigeria, marriage is only legal when it takes place between two persons of opposite sex. Marriage between two persons of the same sex is not only disallowed but it is also a crime which attracts serious punishment[3].

This marriage is governed primarily by the Marriage Act[4], while the Matrimonial Causes Act, which is the primary law on the dissolution of this marriage, also addresses some issues as to the nature and legality of a marriage under the Act.

How do I know if a place of worship where I am going to celebrate my marriage is licensed to conduct weddings or not?

There may not be anything on the surface that will show whether a place of worship is licensed to conduct weddings or not but you may find out from the presiding priest whether the place is licenced or not because if a place of worship is not licensed to conduct weddings, it means any wedding conducted in it may not be more than a Customary law marriage provided it meets the requirements of a valid marriage under the Customary law. Otherwise, it would be no marriage at all especially where it is found that the parties “willfully” or “knowingly”[5] go through the marriage despite their knowledge that the place of worship is not licensed to do it. If, however, the parties are oblivious of the fact that the place of worship is not licensed, the marriage will be held to be valid. 

Having said that, it is worth being emphasised that intending couples ought to enquire from a religious body or a recognised priest of where they intend to get married whether the place is licensed or not. If a place of worship issues a marriage certificate that bears the Nigerian logo or if a certificate of marriage issued by a place of worship is the same as the one issued by a marriage registry, it is a strong basis to conclude that such place of worship is licenced to conduct marriages under the Act. It should be noted that the licence of the headquarters of a religious denomination does not cover any of its branches[6] to conduct weddings, except if what is taking place is a mere religious or church blessing. Each branch of a church, for instance, needs to be licensed on its own. Alternatively, a branch church may decide to celebrate weddings at its headquarters.

I want to get married in my place of worship but my bride-to-be and I are being asked to do some clinical tests such as pregnancy, genotype, and HIV tests which are not required by law and are intrusions to our privacy. Can we approach a court of law to compel the place of worship to conduct our wedding without all the tests?

                        You may approach a court but your suit is bound to fail because every place of worship has the liberty to set its own rules on the conduct of weddings and it is left for those who want to get married to choose whether to do so in a place of worship or a marriage registry. But if you choose to do your wedding in a church, for instance, you must conform to their rules and regulations on marriage celebration.

            My church forbids divorce and does not also believe in the Customary law marriage. The church has its own rules and regulations on marriage and every member must marry in accordance with the laid down rules of the church in which the marriage registry is not involved in the marriage celebration at all. The church also has its own marriage certificates. It believes in pure Christian marriage. Once a member is married in line with the church rules, divorce is not allowed under any guise.  Can marriages celebrated in my church be said to be legal?

                        No. It is not legal but it is also not illegal because the church does not violate any Nigerian law by having its own type of marriage completely different from the ones recognised in Nigeria. However, the reason it is not legal is because such marriage is neither a Customary law marriage nor a marriage under the Act. It is, without mincing words, not a marriage known to the Nigerian law at all. It is as good as the parties are not married. In case, they want to dissolve it, no court of law has the power to dissolve it because it is regarded that there is no marriage in the first place and therefore, there is nothing to be dissolved.

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[1]. Other forms of marriage are Customary Law marriage and Islamic Law marriage. The two are briefly discussed under Parts II and III of this book. For more details, read- Efe Etomi and Elvis E. Asia, “Family Law in Nigeria”, available online at http://uk.practicallaw.com/6-613-4665 (accessed on 5th June, 2016). See also, Bambo Adesanya, SAN, “Marriage, Divorce and Succession: The Legal Aspects”, available online at http://www.dioceseoflagoswest.org/PastoralIssues/Teachings/MARRIAGE,%20DIVORCE%20AND%20SUCCESSION%20-%20THE%20LEGAL%20ASPECTS.htm (accessed on 13th June, 2016).

[2]. It was given in the case of Hyde v. Hyde (1886) L.R 1. P. & D. 130.

[3]. In December 2013, the Same-Sex Marriage (Prohibition) Act was promulgated in Nigeria. However, marriage between persons of the same sex (otherwise known as same-sex marriage or gay marriage) is now legally allowed in the US and most (if not all) European countries.

[4]. The Marriage Act is a federal law and the full meaning of this is that marriage under the Act is a matter within the Exclusive Legislative List in the Nigerian Constitution. Only the National Assembly can legislate on statutory marriage in Nigeria; no State House of Assembly can. A copy of the Marriage Act is attached to this book as an appendix for ease of reference.

[5]. This was the decision of the court in Obiekwe V. Obiekwe (1937) 7 E.N.L.R. 196, where a marriage solemnised in the Holy Ghost Roman Catholic Church, Enugu was not declared null and void because the Court found that the couple did not knowingly and wilfully participate in the marriage without the requisite licence.

[6]. Obiekwe V. Obiekwe, supra.