marriage and law

Marriage And The Law (Part 1)


Meaning of Marriage under the Matrimonial Causes Act-

Marriage includes a purported marriage that is void but does not include one entered into according to Muslim rites or other customary law. See Section 69, Matrimonial Causes Act.

Modes of Contracting Valid Marriages in Nigeria

There are only 3 modes of contracting a valid marriage in Nigeria.

  1. Marriage under the Act.
  2. Customary/Native law Marriage. The law recognizes this form of marriage see Section 35 Marriage Act (M. A)
  3. Marriage under the Islamic law.

Under general categorization, we can group marriages in Nigeria into two types:

Marriage under the Act and Native Law Marriage

Marriage under the Act– this is what is known and widely adopted today by Nigerians as wedding. It is one of the English practices and customs left with the Nigerian people by the Britain upon attainment of independence.

Marriage under the Act is the only form of marriage recognized in Nigeria as monogamous. This is akin to the form of marriage under the Act in England celebrated by the Superintendent Registrar.

One of the most important prerequisites of any valid marriage under the Act is the existence of the marriage certificate issued by the Registrar of Marriages following the celebration of marriage.

Venues where a Marriage under the Act may be celebrated.

The Marriage Act provides for venues where a marriage may be celebrated and 2 categories of persons before whom a marriage can be validly celebrated. These are

  1. In a licensed place of worship by a recognized minister of church, denomination or body to which such place of worship belongs see Section 21 of M. A
  2. At the Registrar’s office by the Registrar of Marriages see S. 27 M. A
  3. Marriage pursuant to a Ministers license to be celebrated in any place so indicated in the license but to be contracted by a recognized Minister of some religious body or by the Registrar of Marriages.

Licensed Place of Worship

The Act provides for a licensed place of worship. Such place of worship must have been licensed by the Minister see S. 6 M A. Such licensed place could be a church, mosque or other religious places. Also, the person to celebrate the marriage must be a recognized minister of the church, denomination or body.

The marriage may be in accordance with the rites and usages of marriage in such church or body. After the celebration, the officiating minister shall issue a Marriage Certificate and transmit a duplicate copy of the certificate to the Registrar of Marriages within 7 days of the celebration of the marriage. See S 25 and 26 of MA

The Registrar’s Office

The parties to the intended marriage, having procured the Registrar’s certificate or Ministers license as the case may be, may decide to contract the marriage in the Registrars’ office before the Registrar of Marriages devoid of any civil or religious rite.

The “Church Marriage

It is prevalent in Nigeria to see couples go through a marriage ceremony in accordance with some religious rites especially in churches, without first going through the statutory requirements already discussed.

It must also be noted that not all churches and places of worship are licensed for the celebration of marriages.

The consequence of breach of this provision is that such marriage is null and void as unions arising from intentional cohabitation without undergoing the formalities of marriage, no matter how long does not amount to valid marriage in the eyes of the law

As put by a learned author, “it is a thousand pities that some self-proclaimed men of God encourage their gullible converts that if they obtained ‘a religious ceremony of marriage in church’ and a clergyman issued them a colourful designed ‘marriage certificate’ they are validly married.”. this is a church blessing and has absolutely no validity in law; at best it has minimal social significance. Of course, if the parties married under customary law; the union would be valid under that system of law, the church blessing adds nothing to it. It must be said over and over again that legally, the validity of a marriage is a civil, not a religious matter.

In Ajih v. Ajih (1975) 5 ECSLR 6, Araka stated:

“The [Church] was at no time a licensed place for marriages under the Act. No notice of the marriage was given to the Registrar of Marriages under section 7 of the Marriage Act. No Registrar’s certificate was obtained by the parties under section 11 of the Act. By section 26 of the Act it is provided that a marriage certificate shall be signed by the parties…by Section 26 of the Act, the officiating priest shall within 7 days of any marriage celebrated by him transmit to the registrar of the marriages a duplicate copy of the marriage certificate for filing in the Registrar’s office. This was never done.

The parties fail to realize that marriage creates a status. The status of the parties is a matter of State laws and not canon [church] law”. So that a marriage which may be valid under the canon law may not necessarily be of any effect under state law.

Such marriage is valid in England when celebrated in the Church of England in accordance with the rites of that church preceded by the publication of the banns of marriage, but not in Nigeria.

Invalid Marriages

  1. Where either of the parties at the time of celebration of such marriage is married under customary law to any person other than the person with whom such marriage is had. See S. 33. In other word, marriage under the Act conducted after a customary marriage by the same parties is valid.
  2. Marriages celebrated in any place other than the office of a registrar of marriages or a licensed place issued under S. 13
  3. Under a false name or names; or
  4. Without a registrar’s certificate of noticeor license under s 13
  5. By a person not being a recognized minister of some religious denomination or body or a registrar of marriages. See s 33 2 a-d MA

Note that any person who is married under the Act or whose marriage is declared by the Act to be valid shall be incapable, during the continuance of such marriage, of contracting a valid marriage under customary law. S. 35. In other words, no person married under the Act is allowed to contract another marriage under native law and custom- not even with the same person to whom he is married under the Act

It is criminal offence under the M.A for a party duly married under the Act, to contract a customary marriage. The punishment is an imprisonment for 5 years. S 47 M.A 

Seprebofa M. Oyeghe (ESQ) is a Legal Practitioner based in