Law and the Different Faces of Marriage

IBridegroom X attended a traditional wedding some time ago, what we Yorubas call ‘Gage’ (Engagement Ceremony). It was a very lavish affair. I knew the Bride’s family, but I only met Bridegroom X for the first time at the ceremony, when I went to offer the new couple my heartfelt congratulations and best wishes for their future. Bridegroom X greeted me warmly and told me that his Bride was his ‘one and only’, and he would love and cherish her forever. I was so touched and happy for the couple. Little did I know that my joy would be short lived.

A week or two after the wedding, I had a matter in Court, and as I was scanning through the cause list to check what number my matter was on the list, to my utmost shock, I came across Bridegroom X’s name and that of another woman bearing his surname under New Motions (Divorce). The wife was even the Petitioner!

I thought to myself, this is more or less like R v Princewill (1963) NWLR 54 all over again; the only reported Nigerian case of Bigamy which we studied at Law School. Princewill had married under the Marriage Act in 1950. Subsequently, in 1960, he changed his religion and became a Muslim. He then purported to marry another wife under Islamic Law, without dissolving his previous marriage contracted under the Marriage Act. The Court held that Princewill had committed Bigamy. He was however, only sentenced to seven months imprisonment, though the law provided a maximum of seven years imprisonment for the offence.

Bigamy Bigamy, is simply “the criminal offence of wilfully and knowingly contracting a second marriage while the first marriage to the knowledge of the offender, is still subsisting and undissolved”. The second marriage in these circumstances, is null and void, and of no effect, while the first marriage remains valid, with the second marriage having absolutely no effect on it.

While abroad, in places like USA for instance, bigamy usually entails one person contracting a marriage say in California, and without divorcing that spouse, contracts another one in Utah, both under the two State laws; here in Nigeria, the situation is somewhat different. It is usually contracting different forms of marriage simultaneously like Bridegroom X, that is, under the Marriage Act (Statutory Marriage) and Customary Law.

Islamic and Customary Marriages, permit more than one wife, as long as they are all married in that same traditional or religious manner/pattern. There is also divorce in the Customary and Islamic Marriages. Divorce in the former can be Judicial (from a Customary Court or some Magistrates Courts) or nonjudicial (returning of bride price/dowry), and in Islamic Marriage, also by judicial (Sharia Court) or non-judicial (Pronouncement by the Husband - Talaq).

Section 370 of the Criminal Code Act 2004 makes bigamy an offence punishable with seven years imprisonment. However, it seems that many Nigerians are either oblivious to the laws governing marriage, or they simply do not care about them and therefore, pay them no mind, especially as the offence of bigamy seems to be inactive here. In the olden days, it was the practice for many men not to divorce their first wives who they married under the Act, but simply to move in other women whom they married under native law and custom, into their matrimonial homes, with or without the first wife in residence. Though many couples now go to court to obtain divorces, there are still many Bigamists like Bridegroom X all over the place, including Lawyers.

There are some defences against the offence of bigamy; if the person genuinely believed that the spouse was dead, or the spouse had been missing for up to seven years or the person genuinely believed that the previous marriage was void. Of course, none of this was the position in Bridegroom X's case.

Marriage Act 2004 Section 35 of the Marriage Act 2004 (Marriage Act) unequivocally I might add, provides thus: “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 marriages so contracted”.

Simply put, if a person married under the Act, purports to marry another person through customary law without going to court to obtain a divorce from the first spouse, such person commits the offence of bigamy and is liable to five years imprisonment (Section 47 Marriage Act). I would imagine that going by the precedent of R v Princewill, the provisions of Section 35 of the Marriage Act will also apply to Islamic Marriage like Customary Marriage, though it is not expressly mentioned therein. However, marrying the same person customarily and statutorily, does not constitute the offence of bigamy. In fact, most people tend to celebrate the traditional wedding, just before the statutory wedding. Christian weddings celebrated in a registered place of worship, are covered by the Marriage Act, and a marriage certificate issued by the Registrar is given.

A person married to a spouse customarily and statutorily, cannot marry another spouse customarily, unless the statutory marriage is dissolved first.

Section 33(1) of the Marriage Act also provides that “No marriage shall be valid where either of the parties thereto at the time of the celebration of such marriage is married under customary law to any person other than the person with whom such marriage is had”.

I am acquainted with a lady who married a man under the Marriage Act, knowing that he was already married under native law and custom to another woman. She erroneously believed that her marriage was superior to her husband’s prior native law and custom marriage, because hers was a Statutory Marriage. Tah! Section 39 of the Marriage Act, provides an equally stiff punishment of five years imprisonment, for an unmarried person who knowingly contracts a marriage with a person, whom they know to be validly married to another person.

Suitably of the Marriage Act for Nigeria

Some have argued that the provisions of the Marriage Act, offend our Nigerian/ African Culture, which they believe is potentially polygamous. I disagree. For those who want to live a monogamous life and on their deaths, have their possessions distributed according to the law, the Marriage Act beckons. Likewise, for those who want to live a polygamous life and marry ten wives, Native Law and Custom is there for them to take advantage of. For Muslims, there is Islamic Law which permits marriage to a maximum of four wives (subject to certain conditions).

The solution - simply choose the form of marriage which suits your purpose. Do not mix the different forms of marriage, unless one form is brought to an end before embarking on another! onikepo.braithwaite@thisdaylive.com onikepob@yahoo.com