THE LEGAL EFFECTS OF CUSTOMARY LAW MARRIAGE IN NIGERIA
TABLE OF CONTENTS
1.1 BACKGROUND OF THE STUDY
1.2 STATEMENT OF THE PROBLEM
1.3 OBJECTIVES OF THE STUDY
1.4 RESEARCH QUESTIONS
1.5 RESEARCH HYPOTHESIS
1.6 SIGNIFICANCE OF THE STUDY
1.7 SCOPE OF THE STUDY
1.8 DELIMITATION OF THE STUDY
1.9 DEFINITION OF TERMS
2.0 LITERATURE REVIEW
2.1 CONCEPT OF MARRIAGE
2.2 TYPES OF MARRIAGE IN NIGERIA
2.3 THE CUSTOMARY AND STATUTORY MARRIAGE IN NIGERIA
2.4 REQUIREMENT OF A VALID CUSTOMARY MARRIAGE
2.4.2 DISSOLUTION OF CUSTOMARY MARRIAGE
2.5 THE THREE DIFFERENT SOURCES OF NIGERIAN LAW OF MARRIAGE AND DIVORCE AND THE CONTEMPORARY SITUATION IN NIGERIA
2.6 LEGAL EFFECTS OF MARRIAGES
3.0 RESEARCH METHODOLOGY
3.1 RESEARCH DESIGN
3.2 AREA OF STUDY
3.3 POPULATION OF THE STUDY
3.4 RESEARCH SAMPLE AND SAMPLING TECHNIQUE
3.5 INSTRUMENT FOR DATA COLLECTION
3.6 VALIDITY OF THE INSTRUMENT
3.7 METHOD OF DATA COLLECTION
3.8 METHOD OF DATA ANALYSIS
4.0 DATA ANALYSIS AND PRESENTATION
5.0 SUMMARY OF FINDINGS, CONCLUSION AND RECOMMENDATION 5.1 SUMMARY
1.1 Background to the Study
Definitions of marriage have become important as the new invidious call the same sex marriage that emanated from the so called ―advanced‖ western European countries and the United States of America has found voice in the traditional and culturally conservative Nigeria. The Holy Bible, the guardian book of the Christian religions faith describes marriages as a union of two apposite sexes:
In support of marriage as a union of two opposite sex, the Holy Bible states further: ―Thou shall not lie with mankind, as with womankind: It is abomination‖2 The story as told of what marriage is in the Holy Bible, is not different from the perspective of the Islam religions faith. According to Atangana Haashim Abdu-Salaam Kamena: ―The concept of marriage is one of the most important fundamentals in Islam….‖3 Atagona Kamena implies that marriage is a union of the opposite sex when he quoted ―Quran 24. 32‖ (That is the Holy Book of the Islam faith) as stating: ―Mary the unmarried among you and the righteous of your male and female servant.
To give precision to its definition on the nature of gender involved in marriage, the dictionary goes on to define ―married‖ as: ―having a husband or a wife.‖ 6 The same dictionary finally locates the gender involved in marriage by defining husband and wife as: ―a man and woman who are married.‖ 7 From the legal lexicon, marriage is seen as: ―A contract made in due form of law by which a free man and a free woman reciprocally engage to live with each other during their joint lives, in the union which ought to exist between husband and wife….‖8 Furthermore: ―Marriage is a contract intended in its origin to endure till the death of one of the contracting partners. It is dissolved by death or divorce.‖ 9 A description of marriage given also indicates that it is union of opposite sex: ―Marriage ….. Establishes the legal father of a woman‘s child; establishes the legal mother of a man‘s child; gives the husband or his family control over the wife‘s sexual services… gives the wife or the family control over the husband‘s sexual services…‖10 A British court in the year 2006 refused to recognize the same sex marriage of two university professors. President of the court Mark Potter held that there was a ―Longstanding definition
Generally, worldwide, marriage is regarded as a union of two opposite sexes that is man and woman. In some jurisdictions (Nigeria inclusive), marriage is also viewed as a union of man with more than one woman. The Islamic faith lends credence to this version of marriage known generally through the generic tern polygamy; though the appropriate sociological word is polygyny. A few societies have permitted polyandry (a woman having several husbands).
Customary marriage is a union of one man and one woman or more than one woman and also between the two families involved. Varieties of customary marriage abound in Nigeria, as diverse as the numerous cultures in the country. There are however discernible uniform features in this specie of matrimonial union. The features referred to as essential requirements of a customary marriage include:
i. Parental consent
ii. Consent of the parties to the marriage
iv. Bride ―price, or ―gift, or ―symbol
v. Prohibited degrees of consanguinity and affinity
vi. Capacity to marry under customary law
Consent (parental and spouses) is vital to the legality of a customary marriage. Parental consent is found in the universally accepted principle that a customary marriage also involves the union of two families. In the case of Okpanum v. Okpanaum, the court puts consents this way:
In traditional Ibo society a valid customary marriage possess two elements: first the essential element which comprises parental consent, and in modern society, the agreement of the man and the woman immediately concerned, parental consent may be given by the pater families, i.e. the head of family invested with patria potestas or by the immediate father of the women or by a person in loco parenties to her or as may happen in modern society by a widowed parent. The importance and preeminent position hitherto given to or occupied by parental consents is gradually yielding ground in recent years to express agreement of the parties to the marriage themselves and in some cases parental consent is now a matter of course. In rural areas, where child marriage by proxy is still practiced, parental consent still holds sway with unmitigated vigour.
What happens where parent(s) withholds consent? Onokah quotes the Customary Law Manual as stating: ―A boy is free to marry a woman of his choice without the consent of his parent or guardian if he is financially in position to do so by himself. An adult man is free to marry without first obtaining the consent of his parent or family head to such marriage. No uniform and precise marriageable age has been prescribed. In the words of Onokah:
Until some thirty years ago, customary law allowed child betrothal as well as child marriage. Thus, parents of a female child could promise a grown up man that their infant daughter would marry him, his infant or adult son. This promise could be made even when the baby was still unborn, but subject to its being a girl. The preliminaries of marriage would be carried out as soon as the child was born. This notwithstanding, no valid customary marriage took place until the parties had attained the age of puberty which could be reached at different ages depending on the physical development of the young person.
1.2 Statement of the Problem
The co-existence in Nigeria of customary and imported (English) laws has produced choice of law problems of a nature quite distinct from those for which rules of private international law have been formulated. The law of marriage and divorce is characterized by a distinctive legal pluralism. One finds statutory law, based on English law, and largely taken over from colonial times with few important changes; and customary law, consisting of a great number of different local customary laws of the various ethnic communities in Nigeria. In the North, Islamic law is mainly applied, which constitutes, in theory, a separate body of law, but in practice its rules are heavily influenced by the respective customary laws. Consequently, the border between these two systems is often blurred. However, the different nature of Islamic law1 justifies a separate discussion on Islamic marriage and particularly divorce in a special section. All of these marriage laws embody to a great extent different traditional and religious values that are scarcely compatible. Conflicts between them frequently arise, especially in the case of divorce. Customary law is still the primary source of family law, for most Nigerians contract marriages only under their respective customary laws, but rarely perform solely a statutory marriage.
1.3 Objective of the Study
The main objective of this study is to find out the legal effect of customary marriage in Nigeria, specifically the study intends to:
1. Find out the causes of conflict between the legal of statutory and customary marriage in Nigeria
2. Find out the legal effect of customary marriage in Nigeria
3. Investigate the importance of customary marriage in Nigeria
1.4 Research Question
1. What are the causes of conflict between the legal of statutory and customary marriage in Nigeria
2. What is the legal effect of customary marriage in Nigeria
3. What is the importance of customary marriage in Nigeria
1.5 Significance of the Study
This research work will expose the general public, the government and other stakeholders involves on the importance of customary marriage and the differences in the statutory marriage and also the legal effects of customary marriage in Nigeria.
This research will also serve as a reference point for other researcher who will embark on the same research.
1.6 Scope of the Study
This research work will vividly examine the importance of customary marriage and the differences in the statutory marriage and also the legal effects of customary marriage in Nigeria. Also this research will be conducted in Ikeja, Lagos state.
1.7 Delimitation of the Study
Finance for the general research work will be a challenge during the course of study. Correspondents also might not be able to complete or willing to submit the questionnaires given to them.
THE LEGAL EFFECTS OF CUSTOMARY LAW MARRIAGE IN NIGERIA