Saturday, 21 April 2012

Advocacy for a Better Implementation of Women’s Right in Marriages

Marriage is the union between a man and a woman. Marriage is recognized all over the world and is deeply rooted in the laws of the State, religions and culture. Marriage is the root of the family and society. It can only retain or possess validity and command if such laws reflect the moral values, economic conditions and
religious beliefs of the people to which the law applies.

In consonance with the plural nature of the legal system in Nigeria, three forms of marriages are legally recognised in the country. These are the Statutory or Act marriage, Customary Marriage and Islamic marriage. The constituent elements necessary for the validity of each marriage are different and so are the attendant consequences. The Formalities, consequences and rights guaranteed for women will be discussed for each form of marriage.

It is otherwise known as marriage under the Act. This is a marriage contracted in conformity with the provisions of the Marriage Act 11. This type of marriage is monogamous in nature and is therefore the voluntary union of a man and a woman for life to the exclusion of all others. It may be celebrated either in the ecclesiastical manner or in the civil manner as prescribed i.e. in the church or the Registry. Provisions also exist, which provide that the marriage may be contracted by special licence, none the less it must be celebrated by the marriage Registrar or recognised minister of a licensed place of worship.
! A statutory marriage is valid where:
o Both parties are of marriageable age. Age here is in accordance with the act i.e. 18 years.
o There is no other marriage in existence.
o Both parties agree/consent to the marriage
o Both parties are mentally fit to be married.

A marriage under the Act is said to be void or of no effect where;
! Consent was obtained by duress or fraud.
! Both parties are under age.
! One of the parties is insane.
! One of the parties is not single i.e. already married to someone else under any other form of marriage whether customary, Islamic or statutory.
! There is affinity and consanguinity between the parties.

Note that it is illegal to marry two different women under the Statute and under customary Law. The latter marriage is void and the man may be found guilty of the criminal offence of Bigamy an offence which carries a penalty of seven years imprisonment.

Aman can however convert a marriage under customary court to Marriage under the Statutes with the same woman.
Case Study
Husband had contracted a customary law marriage according to the Ilesha native law and custom. There was an issue of this marriage. The husband subsequently traveled abroad to England, where he met another Nigerian lady and they both contracted a marriage according to the rites of the Church of England. Years later on the demise of the husband, a question arose as to the validity of the subsequent union. The Western State Court of Appeal held that since the first customary law had not been dissolved the husband lacked the capacity to enter into another marriage under the statute with another person.

The parties must give notice of their intended marriage to the Registrar of marriages in the marriage district in which one of them resides, by completing the required form and paying the prescribed fee. The Registrar will then enter the details contained in the form into the marriage Notice Book.

After 21 days display of notice, the Registrar may issue the couple proposing to marry, a Registrars Certificate. This certificate is a licence to celebrate the marriage either in the Marriage Registry or in a licensed place of worship such as licensed churches. After the solemnization of the marriage, the Couple and their witnesses must sign the Marriage Register either in the Registry or the place of worship.

MARTINS Vs. ADENUGBA (Case Study Marriage Contracted By Fraud)
There was a successful action for breach of promise of marriage and fraud according to the Plaintiff, she and the Defendant agreed to be married under the Act and that this marriage should be followed by a ceremony of blessing in the church. In September 1942 the Defendant informed the Plaintiff that he had completed all necessary preliminary arrangements for the civil marriage, which he added, had been fixed for the 17th of that month. On that day, they both went to the Marriage Registry at the Magistrate Court, St. Anna, Lagos, and on getting there the Defendant went inside and left the Plaintiff outside. On the same day he informed the Plaintiff that they had been validly married later they went to ST. Peter’s Church, Lagos where a clerk in Holy Orders performed a ceremony by which an customary marriages were blessed, and they were given a Certificate which was not in the form prescribed by the Marriage Act. The parties lived together until 1945 when the plaintiff detected for the first time that the so-called marriage was sham and she instituted the aforementioned proceedings. Held, inter-alia that as regards the subsequent ceremony in the church both parties know that this did not constitute and did not intend it to constitute a valid marriage under the Act. Secondly it would be ridiculous and astonishing to regard the fact of standing outside a Marriage Registry with the intent to be married as amounting to a Statutory marriage.

! A monogamous union is created by a Marriage under the ACT.
! Both parties are not allowed to enter into another marriage during the subsistence of the Marriage.
! The legal rules of evidence relating to the competence and compellability(cannot be forced) of a spouse to testify against the other spouse in proceedings applies to parties to such marriage. A Statutory Marriage gives the parties a status unknown to customary law, therefore on the death without a will of either party, property devolves in accordance with any of the following: Common Law Rules on intestacy, Statutes of general application in England e.g. Intestates Estates Act 1677. Local legislation e.g. Western Region Administration of Estates Law 1959 as variously adapted by the states carved out of the defunct Western Region.

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