Criminality of contracting customary, traditional, and statutory marriages synchronously in Nigeria
Criminality of contracting customary, traditional, and statutory marriages synchronously in Nigeria
By S.O. Giwa Esq
Criminality of contracting customary, traditional, and statutory marriages synchronously in Nigeria
Marriage in Nigeria, as in other African countries, is recognized as a social institution of remote antiquity; but the institution has varied connotations in different parts of the world.

Marriage is a voluntary union between a man and a woman or women (in the case of customary marriage) for life to the exclusion of any other. Thus, it is a legal union which exists between a man and a wife or wives. The practice is acceptable world over and it is usually legally recognized in Nigeria, though there exist a statutory marriage which is monogamous in nature but most prevalent is the customary marriage. The customary marriage is practiced among all the tribes in Nigeria despite the fact that there exist statutory marriage.

One system is based on English law and celebrated in accordance with the Marriage Act (1958), Cap M6, Laws of the Federations of Nigeria 2004 (which hereinafter will be referred to as statutory marriage) while the other is based upon ‘native law and custom’ or more simply ‘customary law’(which hereinafter will be referred to as traditional/customary marriage)

It is noteworthy that a marriage contracted under Nigerian Statutes inspired by English law is always monogamous while customary law marriage is potentially polygamous.

One thing that is pertinent to note is that many Nigerians –literate and illiterate do consummate marriages under native law and custom as well as in accordance with the Act synchronously.

It is no gainsaying that many Nigerians do consummate statutory and traditional marriages together and this practice has become aged long tradition among many tribes in Nigeria. Some Nigerians do consummate their marriages under the Act and their native law and custom while some do consummate theirs under the Islamic Law and at the marriage registry synchronously.

Traditional/Customary marriage is a wedding ceremony that has been conducted in accordance with the customs of the bride and groom’s families which could involve paying of bride price, giving gifts etc., while statutory marriage is a marriage that has been performed in compliance with the Marriage Act. This practice of dual marriage system in Nigeria simultaneously is the central point for the discussion in this piece with a view to finding out how permissible the practice of consummating statutory and traditional marriages by a couple under the law in Nigeria especially Marriage Act with recourse to the marriage sequence or time.

It is in view of the ubiquitous practice of contracting customary and statutory marriages synchronously by many Nigerians that this piece is written to examine the law especially Marriage Act with a view to finding out if any of our laws especially Marriage Act accommodate the practice of contracting marriage under the native law and the Act synchronously which many Nigerians – literate and illiterate are enjoined doing in Nigeria.

Reading through the Marriage Act (1958), Cap M6, Laws of the Federations of Nigeria 2004 evinced some provisions of the Marriage Act which the writer considered important and relevant for discussion in this piece. The provisions are hereunder reproduced for easy reference

Section 35

‘Any person who is married under this Act, or whose marriage is declared by this Act to be valid, shall be incapable, during the continuance of such marriage, of contracting a valid marriage under customary law; but, save as aforesaid, nothing in this Act contained shall affect the validity of any marriage contracted under or in accordance with any customary law, or in any manner apply to marriage so contracted.’  

Flowing from the provision of section 35 of the Marriage Act, it is noteworthy to submit that the salient points in the aforesaid section are:

that there exist marriage under the Marriage Act
that there exist marriage that is valid and declared so by the Act
that any person whose marriage is consummated in accordance with the Act or whose marriage is declared valid under the Act is incapable of contracting any valid marriage under native law and custom during existence of his or her marriage under the Act
that the marriage of any person under native law and custom remains valid if he or she has not contracted any previous marriage at the Marriage Registry and
that there is nothing in the Act that would affect the validity of the marriage of the person contracted under the native law and custom if he or she has not contracted any previous marriage under the Act.
It is note of worth that by the provision of section 35 hereinabove reproduced that a person, who had married in accordance with the Act, that is statutory marriage, and the said marriage is still subsisting, has no right to contract another marriage in accordance with the native law and custom and if he or she contracts marriage under customary law, his/her marriage is invalid.

It is equally worth saying with reference to the provision of section 33(1) of the Marriage Act that no marriage in Nigeria is valid where either of the parties thereto at the time of the celebration of such marriage is married under Native Law and Custom to any person other than the person with whom such marriage is had.

It is however important to note that for any customary marriage to remain valid, either of the parties thereto must not have contracted any marriage in accordance with the Act, which is statutory marriage. Hence, the said customary marriage contracted would become invalid if it is established that such person had married under the Act before he or she contracted his or her marriage under native law and custom.

It is pertinently important to further note that though the provision of section 35 of the Marriage Act (1958), Cap M6, Laws of the Federations of Nigeria 2004 is for validity of customary marriage or otherwise; the provision lends credence to the provision of section 47 of the Marriage Act which proscribes contracting marriage by customary law when parties or either party thereto had already married in accordance with the Act.

Section 47

‘Whoever, having contracted marriage under this Act, or any modification or re-enactment thereof, or under any enactment repealed by this Act, during the continuance of such marriage contracts a marriage in accordance with customary law, shall be liable to imprisonment for five years’   

The aforesaid provision of section 47 of the Marriage Act (1958), Cap M6, Laws of the Federations of Nigeria 2004 does not only proscribe contracting marriage under customary law when parties or either party thereto had already married in accordance with the Act; but the provision also makes it an offence punishable under the Act with five year imprisonment in Nigeria.

It is equally important to note that either of the aforementioned provisions of sections 35 and 47 of the Marriage Act (1958), Cap M6, Laws of the Federations of Nigeria 2004 does not and should not be construed to mean that no person has right to contract marriage in accordance with native law and custom. The provisions are just to the effect that dual marriage-statutory and customary synchronously is an offence punishable with imprisonment of five years especially when parties have subsisting marriage under the Act before consummating their traditional marriages.

It is the provision of the section 46 of the Marriage Act that the practice of contracting marriage under the Act with a person and contracting marriage in accordance with native law and custom with another person during the continuance of the marriage with a person under the Act is an offence punishable by imprisonment of five years. Law is no respecter of person or group of person. The provision of section 46 of the Marriage Act reads thus:

Section 46

‘Whoever contracts a marriage under the provisions of this Act, or any modification or re-enactment thereof, being at the time married in accordance with customary law to any person other than the person with whom such marriage is contracted, shall be liable to imprisonment for five years.’

Flowing from the provision of section 46 of the Marriage Act, it is noteworthy to submit that the law makes the practice of contracting marriage in accordance with native law and custom with different person after the person had contracted marriage under the Act with a person and the marriage with that person under the Act still subsists as an offence and thereby provides for punishment of five year imprisonment for any Nigerian who commits the offence. Law is no respecter of any person or group of person.

It is to be borne in mind that the provision of section 46 hereinabove reproduced proscribes contracting marriage in accordance with native law and custom with a different person when one has already contracted marriage with a person under the Marriage Act, (1958), Cap M6, Laws of the Federation of Nigeria 2004 and anyone who contracts Customary marriage with a person other than the person with whom the marriage under the Act has been contracted commits an offence under the law punishable with imprisonment of five years.

The deductible fact which is important to know from the provision of section 46 of the Marriage Act (1958), Cap M6, Laws of the Federation of Nigeria 2004 is that contracting marriage in accordance with native law and custom with the same person who one has contracted marriage with under the Act is allowed save the said customary marriage is consummated with the same person before contracting marriage under the Act as practised among some tribes.

It is worth saying at this juncture that a person who married under Native Law and Custom cannot marry any other person under the Act except the one he married under Native Law and Custom. Also, a person who married under the Marriage Act cannot marry any other person under Native Law and Custom

It is also pertinently important to let it be known that there is no provision proscribing contracting marriage in accordance with native law and custom and contracting marriage under the Act save the customary marriage has been consummated before marrying under the Act and with the same person.

It is no gainsaying that ‘ignorantia juris non excusat or ignorantia legis neminem excusat’, latin for ‘ignorance of the law excuses not and ignorance of law excuses no one’ respectively, is a legal principle holding that a person who is unaware of a law may not escape liability for violating that law mere by being unaware of its content.

Flowing from the legal principle holding that a person is not excusable from liability for his or her ignorance of existence of the law on a particular act is indisputable fact that no excuse of ‘I don’t know’ can avail any person in Nigeria if his or her act or action is in gross contravention of unequivocal and unambiguous provisions of the law which proscribe an act which has become a tradition in our contemporaneous society.

It is to be reiterated that the position of law is crystal clear under the provision of section 36(12) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) that a person shall not be convicted of a criminal offence unless that offence is defined and the penalty therefor is prescribed in a written law. Thus, a person would only be arrested, detained or prosecuted of an offence if the act committed is provided for as an offence by way of definition in a written law and penalty is also provided in the said written law as in the provisions of sections 46 and 47 of the Marriage Act. Hence, any person who does what the law proscribed in the provisions of sections 46 and 47 of the Marriage Act commits an offence punishable under the law with imprisonment.

It is hereby advised and recommended that people should be wary of the practice of contracting marriages in accordance with the native law and custom more simply ‘customary marriage’ after contracting marriages under the Act, more simply ‘statutory marriage’ and/or the practice of contracting customary marriage with another person during the continuance of marriage with a person under the Act.  The general and ubiquitous statement ‘I don’t know’ is not an excuse in the legal parlance. To be forewarned is to be forearmed.

HAPPY NEW YEAR TO ALL. WISHING ALL PROSPEROUS NEW YEAR       

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