nature and form of marriage under the act.

The nature of statutory marriage is that is monogamous. Statutory marriage is the voluntary union for life of one man and one woman to the exclusion of all others during the continuance of that marriage. The nature of statutory marriage and marriage generally is, that it is a special contract, not a mere one but one which creates status. The status created by marriage is recognized not only in the country where parties are domiciled, but also recognized globally. Marriage creates rights, duties and obligations of law and founded upon the agreement of the parties.

A person domiciled in Nigeria has capacity to marry only if the following conditions hereunder listed are fulfilled:

a. The party to a contract of marriage must have single status at the time of marriage. A person who is already married by customary law to a third party cannot contract a subsequent customary law marriage, neither can a person who is already married under the Act contract a marriage under customary law subsequently. Where a person contracts a subsequent marriage while in a subsistent marriage, the person is liable to 5 years’ imprisonment. Section 33(1), Section 35, Marriage Act. A person who contracts a statutory marriage during the subsistence of a prior statutory marriage also commits an offence. Section 46, Section 47, Marriage Act. However, the spouses of a customary marriage however may subsequently marry each other under the Marriage Act and the latter takes precedence over the former. Okon v. Administrator General of Cross River State (1992) 6 NWLR (Pt. 248) 473.

b. A party to a contract of marriage must have the capacity to marry with regards to age. No person under the age of 18 years is capable of contracting a valid marriage and a marriage so contracted is null and void. The Marriage Act does not categorically state the required age of statutory marriage. However, Section 21 of the Child’s Rights Act places marriageable age at 18.

c. Parties to statutory marriage must not be within the prohibited degree of consanguinity and affinity. Parties to a marriage must not be related by blood or by marriage. Section 3 (1) (b), 3 (2) – (3), Section 4 and 1st Schedule, Matrimonial Causes Act. Parties must be of opposite sex. Whereas gender identity might be acceptable for other domains of law, marriage is a domain of sexual identity as it is the heterosexual union of man and woman and no artificially created body can fulfill the requirements. Corbett v. Corbett (1970) 2 All ER 33.

d. The parties to a marriage must consent to the marriage. In other words, parties must freely consent to the marriage contract. The absence of consent by either of the parties or where such consent was obtained by fraud or duress, misrepresentation as to the identity of the party or lack of the nature of the ceremony makes the purported marriage void ab initio.

Parental consent of both the male and female parties will be a legal essential where either or both of them are under the age of twenty-one and not being a widow or widower, where either of the parties is under the age, the written consent of the father or the mother or the guardian where the parents are dead or of unsound mind.

e. It is necessary that the parties to a statutory marriage are of sound minds. If one of the parties is insane and therefore mentally incapable of understanding the nature of the marriage contract, the marriage will be void ab initio.

By Section 4 (1) (2) of the Matrimonial Causes Act, two parties within the prohibited degree of affinity who wish to marry each other can apply in writing to the High Court judge for permission to do so. The judge may by order permit the applicants to marry each other if he is satisfied that the circumstances of the particular case are so exceptional as to justify granting of the permission sought. Such a situation would not include the fact that the parties are very much in love with each other or have been engaged for a long period of time. However, for example, where parties who are related by marriage unknowingly cohabit in diaspora and beget a child, if they want to marry, this may qualify as an exceptional circumstance. Where parties marry in pursuance of the permission granted by the judge, their marriage will be valid notwithstanding that they are within the prohibited degree of affinity, but such marriage may be annulled on any other ground. Section 4(3), Matrimonial Causes Act.

There are prerequisites to be fulfilled prescribed by the Marriage Act as a condition precedent before solemnization of statutory marriage. These conditions are known as preliminary formalities and they are:

a. Notice of marriage: The first step to be taken by persons who desire to marry under the Act is to complete and sign a notice of marriage in a prescribed form as provided by Section 7 and 8 and Form A and Form B of the First Schedule to the Marriage Act* issued by the Registrar on application. The completed form is to lodged with the Registrar of the district in which the marriage is intended to take place. The Registrar must publish such notice by affixing a copy of the notice on the outer door of his office or the public notice board of the Registrar’s office and must keep it affixed until he grants his certificate, or until three months have elapsed. Section 10, Marriage Act.

b. Registrar’s Certificate: The Registrar may after the expiration of 21 days and before the expiration of 3 months from the date of the notice and on the payment of the prescribed fee issue his certificate to the applicant. The Registrar will only issue a certificate where satisfied by an affidavit sworn by the applicant before a Registrar, an administrative officer or before a recognized minister of religion that:

1. One of the parties has been resident within the district in which the marriage is intended to take place for at least 15 days preceding the granting of the certificate.

2. Each of the parties to the intended marriage not being a widow or widower is 21 years old or when she or he is under that age, the requisite consent has been obtained in writing and attached to the affidavit.

3. There is no impediment of kindred or affinity or any other lawful hindrance to the marriage.

4. Neither of the parties is married by customary law to any person other than the person with whom such marriage is proposed to be contracted.

c. Celebration: The marriage must take place within 3 months from the date of the notice, failure to comply with these requirements make the notice and the proceedings consequent thereupon void. Section 12, Marriage Act.

In some special cases, the procedure for the notice of marriage and the Registrar’s certificate are circumvented. This is done through obtaining a special license. A special license is such that is granted where the parties cannot wait for the prescribed period of 21 days after lodging a notice with the Registrar. Special license is commonly granted where a public figure desires to contract a marriage and without publicity.

The medium provided for by the law to enable a person with a just cause to protest the celebration of marriage between two parties is through a caveat. A caveat may be entered against the issuance of the Registrar’s certificate by any person whose consent to the marriage is required by law or by anyone who knows of any just cause why the marriage should not be celebrated. Where a caveat is entered, the registrar may not issue the certificate until the caveat is removed. The Registrar is required by law in the case to refer the matter to a judge of the High Court of the state. Olikagbue v. Olikagbue Unreported Suit No. M/17/66 High Court of Benin.

A caveat is entered by writing the word “forbidden” opposite the entry of the notice in the marriage notice book and appending the writer’s name, address and grounds on which he or she claims to forbid the issuance of the certificate. Section 14 (1), Marriage Act.

Parties who elect to celebrate their marriage at the Marriage Registry must have obtained a Registrar’s certificate or a special license and must celebrate the marriage before a marriage registrar in his office and in the presence of two witnesses. The celebration of the marriage must take place with open doors between 10a.m and 4p.m. Section 27, Marriage Act.

Apart from solemnizing marriage otherwise than in accordance with the Marriage Act, some religious denominations perform church blessing of marriages. Church blessings do not constitute a valid marriage and do not add anything to an existing civil marriage. It is not a legally valid marriage unless certain formalities prescribed by the Marriage Act are observed. Setse v. Setse (1959) GLP 155, Obiekwe v. Obiekwe (1963) 7 ENLR 196 and Martin v. Adenuga (1946) 18 NLR 63.

The Marriage Amendment Act of 1971 provides for the valid celebration of marriages outside Nigeria in a Nigerian diplomatic or Consular mission office. In such a case, one of the parties to the marriage must be a Nigerian Citizen and the marriage must be contracted before a Nigerian diplomatic or consular officer of the rank of secretary or above. Such marriages have the same legal effect as those contracted before a marriage Registrar in Nigeria.

Double deck marriage describes the type of marriage which is common amongst the elites in Nigeria. The need to overthrow the potentially polygamous nature of the customary law marriage is quite common among the educated female elites. Double deck marriage is a chameleonic and opportunistic type of marriage which has the flavor and characteristics of both the customary and the statutory marriage. All the features that make customary marriage to be valid in law also make a double deck marriage to be valid. In addition, it can be regarded as surplusage kind of relationship where a person is contemporaneously married under two systems of marriage where neither is deficient. It must also be said that it is common practice in Nigeria for parties who intend to contract a statutory marriage to marry first under customary law before the solemnization of the statutory marriage. This practice may be explained by the fact that though western civilization and western culture have permeated Nigerian society, most people even the most sophisticated, understandably regard themselves as bound by the customary law of their place of origin.

There is no law that forbids a double deck marriage in clear terms. People however tend to believe that their tradition makes it imperative that the two marriages are traditionally recognized. People contract double deck marriage as a way of preserving the customs and tradition. Another reason why people engage in double deck marriage is to look for a legal force or security for their earlier customary marriage.

The raging question of which of the two decks of a double deck marriage supersedes at law gave rise to diverse perceptions, prejudices and preferences which birthed two schools of thoughts on double deck marriage with different theories. The theories are stated below:

a. The conversion theory: The proponents of this theory state that statutory marriage supersedes customary marriage and uphold that when a couple go through a second marriage which is statutory, the original potentially polygamous marriage becomes converted into a monogamous one. It is believed that parties married under the Marriage Act are entitled only to the rights and obligations of that system. Whatever customary law rights acquired from the previous customary law are automatically superseded by the subsequent statutory marriage. The conclusion is derived from the combined effect of Sections 35 and 47 of the Marriage Act. Section 35 of the Marriage Act states that a customary marriage cannot validly follow a statutory marriage and in addition Section 47 of the Marriage Act makes it an offence for someone to contract a customary marriage after a statutory marriage. It is not conclusive that nothing in the aforementioned sections depicts any express or implied justification that a statutory marriage supersedes a customary marriage. The main contention of this theory is that, a party who celebrated a double deck marriage cannot have two different types of married status as one is monogamous while the other is potentially polygamous therefore a subsequent statutory marriage assimilates the customary marriage, eliminates all its incidents and substitutes its own incidents. The courts have however, in a number of cases supported the view that a statutory marriage supersedes a customary marriage or that a customary marriage merges and dissolves into a statutory marriage. Jadesimi v. Okotie Eboh (1996) 2 NWLR (Pt. 429) 128.

b. The co-existence theory: This school of thought posits that customary marriage co-exists with statutory marriage. The court in the case of Akparanta v. Akparanta (1972) 2 E.C.S. L.R 779, stated that statutory marriage is merely superimposed on a customary marriage. The latter is not extinguished, but co-exists with the former and the determination of one would not affect the continued existence of the other and if at all the issue of superiority emerges, customary marriage takes the lead as of the first in time. The court stated in Oluchukwu v. Oluchukwu (1960) 1 All E.R 253, the court held that a potentially polygamous customary law cannot be converted into a monogamous marriage merely because the parties intended it to be so.

Double deck or decker marriage has some identifiable resultant legal effects. The effects have bearing on both systems of law wherein the marriages were conducted. The following are the consequences of a double deck marriage:

a. Status of the marriage: Under the double deck marriage, the question arises as to whether the parties married should be monogamous, polygamous or both simultaneously. According to the conversion theory, the customary law marriage is converted by the statutory marriage, consequently the parties’ status should be monogamous. However, the co-existence theory contends that the two marriages co-exist, therefore status of the parties is monogamous, but potentially polygamous. This position is however ambiguous in the light of the provision of Section 33 and Section 47 of the Marriage Act.

b. Ownership of Matrimonial Property: Under custom, the wife requires the husband consent to deal with her own property or at the least holds him in coincidence in order to deal with her own property or her private chattel. This is in consonance with the tradition that categorizes a wife as part of husband’s property. This contradicts Sections 2 and 3 of the Married Women Property Act and is repugnant to natural justice, equity and good conscience. Couples married under the statute do not require each other’s consent to any act done on the other’s property. The conversion theorists argue that what applies statutorily would apply and be the effect, but the co-existence theories hold a contrary view that both systems would apply simultaneously. Under both systems the husband should maintain his wife during the subsistence of the marriage.

c. Jurisdiction of the court: The conversion theorists opine that since the original customary marriage has been converted into a monogamous marriage, the divorce petition must only be presented in the High Court which has exclusive jurisdiction to dissolve statutory marriage. The co-existence theorists have the view that a court must first determine the question of jurisdiction. Therefore, where the petition is presented first in the customary court, it would have jurisdiction to dissolve only the initial customary marriage, thus leaving the statutory marriage to be dissolved by the High Court.

d. Dissolution of marriage: The grounds for dissolution of marriage under the two systems differs. While adultery and incompatibility are facts evidencing the irretrievable breakdown of the marriage under the Act, it is only a ground available and exclusively so, to the customary law husband as against the wife. The coversionists posit that both spouses can get a dissolution on proof of adultery and its intolerability under the Act while the co-existence theorists insist that there is a serial dissolution of the double deck marriage. This means that inspite of the ruling of the court dissolving the marriage, the customary regime would still be applicable to the couple.

e. Bride price: The dissolution of a marriage under customary law is marked by the return of the bride price. The coversionists state that the issue of bride price does not come into play as they uphold the view that the original customary law marriage is terminated by its conversion to the later statutory marriage. The co-existence theorists however, believe that the married woman would still be regarded as a wife under customary law until the bride price is refunded.

f. Death: Under the Act, death ordinarily, terminates a marriage, but under the customary law, marriage does not ipso facto terminate the union, especially where the husband dies before the wife. The co-existence theorists argue that the marriage under the Act would be terminated but however, obligations will have to be fulfilled for the termination of the customary marriage in a situation where the husband predeceased the wife as the woman still remains and maintains her status as wife in the man’s family until she either remarries or returns the bride price to put an end to the customary marriage. For the coversionists, the status of the double deck married couples comes to an end on the death of either spouse.

Section 47 of the Marriage Act states that whoever, having contracted marriage under the Act, during the continuance of such marriage contracts a marriage in accordance with customary law, shall be liable to imprisonment for five years. It is however submitted that Section 47 of the Marriage Act, lacks clarity since Mr. Rhodes – Vivour Ayo and Miss Melanie Utaewa are already married under the law. Section 33(1) of the Marriage Act provides that no marriage in Nigeria shall be valid where either of the parties thereto at the time of the celebration of such is married under customary law to any person other than the person with whom such marriage is had. It may thus appear that there may be no indication when a statutory marriage is followed with a customary law marriage with the same set of people. Since they are already married under the law, the fresh customary marriage cannot negative or cancel it; as the only means of ending a legal marriage is by the pronouncement of a High Court. Furthermore, once parties are married under statutory law, they need not contract a customary law marriage but where they do, it does not negative the statutory marriage.