Marriage Form In Nigeria

By Rev. Matthew C. Iwuji

As a lucid, easily readable, and objective legal exposition, Rev. Matthew Iwuji's Marriage Form in Nigeria becomes an important channel for the knowledge of the legal requirements for a valid contract of marriage in Nigeria, and it is a valuable contribution to the development and clarification of Nigerian family law.

The author limits his investigations and exclusively furnishes facts on the formalities surrounding the marriage relationship in that country.

Prof. Jose Castano

Faculty of Law

Pont. Lateran University, Rome.

*****

Marriage Form in Nigeria, as a classic comparative legal study, provides very useful insight into the most fundamental issue of marriage in Nigeria in an age of intercultural marriages.

It is a book for everyone: parents, young people, pastors who seek to establish freedom to marry, and law students and those interested in Nigerian family law.

Prof. Guiseppe Damizia

Faculty of Law

Pont. Lateran University, Rome.

*****

• Language: English
• Publisher: Fulton Books, Inc.
• Release date: Jun 12, 2023
• ISBN: 9798887314419

Book preview

Table of Contents

Title

Copyright

Foreword I

Foreword II

Acknowledgment

List of Abbreviations

Marriage in Nigeria

Chapter 1: A General Perspective

A. The Marriage Situation

B. The Legal Background

i) The Development

ii) Legislative Regulation of Marriage

iii) Jurisdiction of Courts

Chapter 2: Customary Marriage in Nigeria

A. Origin

B. Nature

C. The Formalities of Marriage

i) Consent

ii) Capacity

iii) Bride-Price

iv) The Formal Handover of the Bride

Chapter 3: Islamic Marriage

A. Origin

B. Nature

C. The Formalities of Marriage

i) The Capacity

ii) The Celebration of the Marriage

Chapter 4: Christian Marriage

A. Origin

B. Nature

i) Marriage—A Human and Sacred Reality

ii) Marriage—A Covenant

iii) Marriage—A Sacrament

iv) The Unity and Indissolubility of Christian Marriage

C. The Formalities of Marriage

i) The Role of Marital Consent

Chapter 5: Statutory Marriage

A. Origin

B. Nature

Marriage Form under the Marriage Act

Chapter 6: Historical Evolution of the Form of Marriage

Historical Evolution of the Form of Marriage

A. The English Heritage

B. The Nigerian Situation

Chapter 7: Capacity to Marry

A. Prohibited Degrees of Consanguinity and Affinity

1. Consanguinity

2. Affinity

B. Minimum Age

C. Consent

1. Consent of the Parties

2. Consent of the Parents

D. Bigamy

E. Persons of the Same Sex

F. Sanity

Chapter 8: The Marriage Form under the Nigerian Marriage Act

A. Explanation of Terms

B. The Formalities of Marriage

i) Preliminary Requirements

ii) Notice of Marriage

iii) Certificate to Marry

iv) Special Licence

v) Caveat

C. Celebration of Marriage

1. Marriage in a Registry

2. Marriage in a Licensed Place of Worship

3. Marriage Under Special License

4. Foreign Marriages

5. Registration and Evidence of Marriage

6. Invalid Marriages

D. Offences and Penalties

1. False Declaration

2. False Claim of Impediment

3. Unlawful Performance of Marriage Ceremony

4. Failure to Fill up and Transmit Certificate of Marriage

5. Personation in Marriage

6. Fictitious Marriage

7. Performing the Marriage of a Minor

8. Marriage with a Person Previously Married

9. Contracting Statutory Marriage When Already Married by Customary Law

10. Contracting Customary Marriage When Already Married under the Marriage Act

Interfaces

Chapter 9: Conflicts

A. The Situation

B. Customary (and Islamic) Marriage in Conflict with Statutory Marriage

1. Conversion of Customary Marriage to Statutory Marriage

2. Invalidity of Bigamous Customary Marriages

C. Christian Marriage in Nigerian Law

1. Christian Marriage in Conflict with Statutory Marriage

2. Christian Marriage in Conflict with Customary Marriage

Chapter 10: Conclusion, Observations, and Proposals

A. Criteria of a Good Marriage Law on the Formalities of Marriage

B. Education of Nigerians on the Marriage Act Duty of Both Church and State

C. More Cooperation between the Church and State Advocated—A Plea for Christian Marriage

D. Cooperation Required from All Citizens

Appendix

Selected Bibliography

A. General Sources

B. Ordinances, Proclamations, Statutes, Enactments, and Decrees

C. Commissions

D. Books

E. Articles

F. Cases

About the Author

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Marriage Form In Nigeria

Rev. Matthew C. Iwuji

Copyright © 2023 Rev. Matthew C. Iwuji

All rights reserved

First Edition

Fulton Books

Meadville, PA

Published by Fulton Books 2023

ISBN 979-8-88731-440-2 (paperback)

ISBN 979-8-88731-441-9 (digital)

Printed in the United States of America

Foreword I

It is a great pleasure for me to be invited to write this foreword on the book Marriage Form in Nigeria, written by one of our most illustrious ecclesiastical and legal scholars at the Rome Pontifical Lateran University, Reverend Father Matthew Chuckwuemeka Iwuji.

Evidently, the distinguished scholar has put a lot of research and intellectual work into the book, and I hope that both Nigerians and foreigners will be more enlightened by it about our culture and civilization.

Muhammadu A. Carpenter

Ambassador of the Federal Republic of Nigeria

Rome

June 8, 1983

Foreword II

It is unusual for a scholastic work to be so vibrant, practical, and revealing, as is this study by Rev. Father Matthew Chukwuemeka Iwuji (Emeka Iwuji). As an outsider, I was at first intrigued by the way he introduced his theme. There is a basic problem in Nigeria on the all-important issue of the formalities of marriage. Something needs to be done about it by patriotic Nigerians. He does not present the problem until he first synthesizes what he himself has experienced as an active minister in Nigerian life, by adequately describing the four basic types of marriage now in vigor in that country. Then he sets these four types into their respective historical setting, showing how the customary marriages which existed in the nation before it was influenced by Moslems and then by the British in their conquests and introduction of common law were put into clearer context by subsequent marriage laws, or what can be called statutory marriage. Thus, instead of there being only three types, there are now four, differing essentially on the matter of monogamy and polygamy and, consequently, on the issue of succession, inheritance, the care of the children, and many other such matters that are important within the fabric of national life but which have been left uncared for either by gaps in the law or laxness in its enforcement.

Emeka Iwuji does not criticize the first three types of marriage; that is, the customary, the Islamic, or the Christian. He presents each in a very sympathetic manner, and when he comes to Christian marriage, he presents an equally representative case for the Anglican Church as well as for his own Catholic Church. He praises the customary marriages for their joining of two family groups and their wide observance of affinity and consanguinity impediments as well as their commitment to a sacred and life-long relationship. He praises Islamic laws for their adaptiveness to the various groups of people. However, for all that, he shows how this same adaptiveness has led to unevenness in the law, and that the difference of affinity and consanguinity requirements in these two types of marriage which are automatically legal in the state can lead to disconcerting problems. As for statutory marriage, he says that many Nigerians erroneously equate it with Christian marriage, possibly because it stipulates monogamy and has many formalities that resemble church requirements. He shows how the resemblance comes from the English background, where statutory marriage laws actually began with church laws, but he says that time and Nigerian independence from England have made statutory law quite a different matter than it was centuries ago. It has become a fourth type of marriage. Without ceremonials, it is equipped with elaborate requirements as to the preliminaries, the place (a registered building), marriage zones, the principal registrar, distinctive terminology, such as void and voidable marriages, certain requirements for the capacity to marry, the giving notice of marriage, the certificate of marriage, the special license that substitutes for many of these requirements, the allowance for a caveat, the optional ceremony at the licensed place of worship," etc.

As the author explains his subject, the specific problems come into focus. He says that whereas Nigeria has laws for the recognition of marriages of Nigerians with non-Nigerians in foreign consulates, it has nothing for the solemnization of Nigerian marriages with non-Nigerians contracted under foreign law or what to do when the consulate marriages are not recognized by the country in which they are performed. The practice and problems of crossing over from the customary (polygamous) marriage to statutory marriage (monogamous) for purposes of greater security for the wife and protection under the law is most interesting, though the author stresses that the practice of remarriage under customary law after a statutory marriage does occur, and with impunity, apparently. The author presents the penal legislation sanctioning the statutory law requirements of the Act of 1914 as amended, but he also points out that the laws seem excessive and counterproductive. One solution to the law against bigamy under statutory law, for example, is to cancel the law since there has not been a single conviction in the country for bigamy. The author calls this solution a cure that is worse than the malady.

Legal pluralism as a phrase seems attractive. Yet in the area of marriage, the author shows that what seems to mean more freedom actually results in greater restrictions of freedom. He blames the statutory laws now in force for part of the problem and suggests, first of all, an education program throughout Nigeria to inform the people about the types of marriage and their various requirements. Then he calls for the nation's legislators to face squarely the problems of a standardization of laws concerning the impediments of affinity, consanguinity, the minimum age, the certainty of the marriage contract, and its proper solemnization. He argues that Christian marriages should be accorded the same automatic validity as customary and Islamic marriages. He questions the need for the registration of church buildings and a separate registration form with the government for the marriage contracted in that church. He also asks that the churches cooperate with the state in every way possible for the production of equitable marriage laws and their observance.

This book is absolutely up-to-date and dynamic in its slow but steady presentation of the actual and possible conflicts among the various marriage types, and he cites interesting and pertinent court cases. Registrars of marriage, as well as ministers of religion in Nigeria, will do well to read this book so that they, too, will be able to see the possible pitfalls that can take place in the work of joining couples and in registering their marriages with the state. Emeka Iwuji only hinted at the dark morass of the future as intermarriages take place, and the conflicting laws have to be somehow reconciled. The outsider, like myself, will also find this book as interesting as a novel because it has a suspenseful structure. An insider, a native Nigerian, will find in this work a profound appreciation for the treasure that Nigeria has in its complex marriage system and will be encouraged to help in a program to educate the people and to take the steps needed to urge the government to update its statutory laws. At the end of the study, the author has an ample index in which he presents the variety of marriage forms for the statutory marriage, the Catholic marriage, and the Anglican marriage. The reader may want to know and read as a corollary another very interesting book, Customary-Law Marriage in Nigeria, written by the same author.

Albert E. Verbrugghe, O. Carm.

PhB (Canada), LLB, LLM, JCL (Rome), STL, STD (Rome)

MBA (Missouri, USA), MA (Washington, DC), LLD and JCD (Rome)

Chicago, USA

Oct. 21, 1983

Acknowledgment

This book, the offspring of a thesis originally submitted to the Pontifical Lateran University Rome as a partial fulfilment for the requirements for the doctorate degree in law, has, as its motivation, the desire to help, highlight, and contribute to the continued development of Nigeria. This motivation, I am happy to note, is already being justified by the wide interest the work has already generated not only within Nigeria but also on international levels.

It is important to write an intellectual work of this kind. However, it is more important to have the necessary help to make it possible to be written and presented in a form such as it now is. Therefore, although it is impossible to mention here the many people and institutions whose assistance was fundamental to the production of this work, I feel myself greatly indebted in a special manner to the following:

All my three readers, Professors Pio Ciprotti, Jose Castano, and Guiseppe Damizia, all in the Faculties of Canon and Civil Laws of the abovementioned university, under whose humane approach, encouragement, and experienced direction this book was written. As renowned authorities in their various professional fields of comparative law, their assistance gives this work a special quality.

To the Nigerian ambassador to Italy, His Excellency Muhammadu A. Carpenter, and to the distinguished American scholar and jurist Dr. Albert E. Verbrugghe, O. Carm, both of whom very kindly accepted to write a foreword to this book.

To all authors and eminent Nigerian scholars, especially in the area of Nigerian family law, whose books I have freely consulted as well as those libraries in Nigeria, Europe, and America whose very useful stock of books were a great help to me.

To all authors and scholars in Nigeria, Europe, and America whose books I freely consulted, and to family and friends for their loving support.

List of Abbreviations

Part 1

Marriage in Nigeria

Chapter 1

A General Perspective

A. The Marriage Situation

Marriage in Nigeria is so important and central to the life of the people that the preparation and ceremonies leading into its entry can hardly be called a one-man, one-woman affair. Although the actual union takes place between this man and this woman, according to this form or that form, marriage involves two families, thereby establishing a more profound and friendly rapport between two communities. This characteristic element of marriage is still very much a part of the Nigerian life, notwithstanding the opinion of some respected authors to the contrary.¹ The disintegration of the traditional society, consequent on increased acceptance and adaptation to a new way of life, on which the authors base their argument, has definitely had its effects on the traditional marriage patterns. But behind the superficial exuberance to the new standards of living, the fact remains that the traditional notion and importance of this cell of society, to the Nigerian, remains unchanged.²

The Nigerian society guards recognizes the fundamental right of every citizen to marry. This has been incorporated into the constitution of the country and forms part of the fundamental right of privacy and family life of every citizen.³

But the marriage situation has always been a very big dilemma in the Nigerian society.⁴ The reason seems obvious. Under Nigerian legal system, two forms of marriage exist side by side—marriage under customary law and marriage celebrated in accordance with the Marriage Act.⁵

A closer view of the Nigerian marriage situation, however, reveals, in my opinion, four different and distinct forms of marriage, which will be discussed below. These forms of marriage trace their origins from separate legal systems—the indigenous and the received legal systems. In fact, there is the coexistence of diverse procedures for entry into marriage based on customary (native law and custom) law, Islamic law, Christian law,⁶ and statutory law. These can be taken to signify the existence in Nigeria of customary (native law and custom) marriage, Islamic marriage, Christian marriage, and statutory marriage. One of the major conflicts among these marriage systems is the fact that statutory and Christian marriages impose monogamy⁷ while the customary and Islamic marriages permit polygamy.

Despite the fact that Christianity is widely practiced in Nigeria by both the educated and uneducated