CUSTOMARY MARRIAGES IN NIGERIA: MISCONCEPTIONS AND VULNERABILITY OF WOMEN.
BY
HON. FATIMA A. NAHUCHE[1]
There are 3 types of marriages in Nigeria vis;
1.1 Statutory marriage
This is also known as marriage under the Act because it is governed by the Marriage Act Laws of the Federation of Nigeria (LFN) 1990, it was referred to as Marriage Ordinance before it was re-enacted into an Act. This type marriage is recognised by the law and serves as an evidence of a marriage contract between a couple.
A couple wishing to be married under the Act, will first of all obtain a Notice form which is marked form A, this form will contain the couple’s personal details. They will be asked to submit the form along with 2 passport photographs and the form is posted on the notice board of their selected registry for 21 days after which their application is entered into the Marriage Notice Book. After the expiration of the 21 days’ notice and upon the payment of the necessary fees, the Registrar will issue the couple with a form C. The form c is issued when the couple satisfy some criteria which include inter alia, the existence of a subsisting customary marriage, that one of the parties lives in the jurisdiction of the registry among other requirements. Upon proof by the couple that there is no existence of any lawful impediment, the Minister will issue them a form D which is an authorisation for the couple to celebrate the marriage. On the wedding day, the officiating Minister signs marriage certificate in duplicates in form E.[2] At the end of court or registry weddings, the certificate is traditionally and symbolically handed over to the woman who is advised to take custody of it and use it as she deems fit.[3] Disputes arising out of statutory marriages are taken to the High courts of the various states.
1.2 Islamic Marriages
These are marriages conducted in accordance to the dictates of Islamic or sharia law. These types of marriages are mostly performed in the northern part of Nigeria. Disputes arising out of Islamic marriages are taken to sharia courts or Area courts.
1.3 Customary marriages
These are marriages conducted in line with the traditional laws of individual Nigerian customs. Disputes arising out of customary or traditional marriages are normally resolved within the community. However, there are now customary courts designated to deal with matrimonial cases arising from customary matters. Now, the tricky bit about customary marriages is that in Nigeria, church weddings are in some instances considered customary in nature. Lord Palmer J, said in regards to validity of church weddings in Nigeria:
“A good deal has been said about church wedding or marriage under Roman Catholic law, so as far as the law in Nigeria is concerned, there is only one form of monogamous marriage, and that is marriage under the Ordinances. Legally, a marriage in a church is either marriage under the ordinance or it is nothing.”[4]
Therefore, in Nigeria a church wedding must be conducted in a licenced place of worship, if not then it will have no legal backing and will be regarded as a customary marriage.[5] Thus, customary marriages are marriages are those marriages contracted under the various Nigerian customs and also church weddings which are not solemnised in a licensed place of worship.
2.0 Misconceptions surrounding customary marriages vis-a-vis church weddings.
The greatest misconception in customary marriages and also perhaps the most important which in my opinion is also the sole misconception is the issue of church weddings and if they are properly solemnised or not. Churches sometimes just bless marriages and couples are left believing their marriages are legally recognised.
Marriage blessing is different from solemnisation, while every church leader can bless a marriage, a solemnisation can only be done by a priest, pastor or leader in a licensed place of worship. When a church is licensed, the license only applies to that specific church and will not be extended to include the branches of that church. There have been instances when churches claim to be licensed because the principal church is licensed.
Couples are sometimes led to believe that any church or any branch of a licensed church is also licensed and these couples are issued a certificate after the blessing of their wedding by a priest or pastor and they think that certificate is an evidence of marriage under the Act.
Even the most sophisticated and educated people do not understand that in the event of a dispute in matrimony, the courts in determining whether a marriage is a statutory marriage or not will only accept a marriage certificate which is in form E for proof of the existence of such a marriage. This form is what offers the legality and legitimacy a marriage needs. It also provides a woman with the privilege to make claims against her husband and for the husband to make similar claims against her in the event of the dissolution of the marriage.
3.0 Vulnerability of women in customary marriages.
Women who go into or find themselves in customary marriages are vulnerable in my opinion, because Nigeria like most African countries is patriarchal, so most customs do not recognise the rights of a woman.
The supreme court of Nigeria has held in a case of right to custody of children when a marriage which was conducted under customary law has been dissolved, that under most systems of customary law in Nigeria, a father of a legitimate or a legitimated child (an illegitimate child who has been recognized or accepted by the father as his) has an absolute right to the custody of the child.[6] Margaret C Onuka also posits that under customary law, a father has the exclusive custodial right over the children of his marriage, she goes on to say the right goes beyond custody to “ownership” of the children.[7]
Furthermore, if a man has a subsisting marriage under the Act and the goes on to contract a marriage under customary law with another woman, the subsequent customary law marriage is rendered invalid. The Marriage Ordinance (now Marriage Act 1990) actually criminalises this and any person caught doing this is liable to 5 years’ imprisonment.[8]
A woman married under customary law is left in more confusion and uncertainty in the event of the death of her husband, some customs do not accord her rights to inherit her husband’s estate, indeed in some customs the wife of a deceased man is considered a part of his estate and can thus be inherited by his heirs.
Some Nigerian customs only recognise the deceased’s first male child in inheritance and in the absence of a male child, his brothers will step in. The practice in the Igbo culture for instance was to totally exclude the female children from inheritance. If a woman is married under customary law while her husband had a subsisting marriage under the Act, the children from the marriage under the Act[9] could inherit their father’s estate to the exclusion of her children.[10]
I should mention at this point that women are not the only ones at the receiving end of the uncertainty which surrounds the traditional laws as regards customary marriages. The men too are subject to them however in my opinion, the women and female children bear the brunt of the complexities of traditional customs.
4.0 Paradigm shift.
The good news is that in the past couple of decades, the narrative has been changing, courts are beginning to pull apart the cocoon of customary laws. Customary court judges are now required to exercise their discretion while applying the repugnancy test on customary laws brought before them. That is, every customary law brought before a court must not be repugnant to natural law, equity and good conscience; if a law does not pass this test, the courts are asked to throw it out. This was the holding of Aboki JCA, where he held that a judge has the duty to ameliorate the harsh content of the law, he said a judge should pour water on the fire of law where it is equitable to do so.[11] The proper role of the judge is to do justice between the parties before him; if there is any law which impairs the doing of justice, then the judge is advised to do all he can legitimately do to avoid that law so that he can do justice in the case before him.[12]
In 1992, the supreme court held that if a couple is divorced from a customary marriage and the custody of children is in issue, and the said children are of tender age, the presumption is that the children will be happier with their mother and no order will be made to the contrary unless in cases where it is proved that the mother is immoral, has an infectious disease, insanity or proven cruelty to the children.[13] The court of appeal of Nigeria, the Kaduna state division followed this supreme court decision in deciding a recent case in 2016.[14]
On customary laws that discriminate against female children, Aboki JCA has held that he finds any customary law which discriminates against female children in inheritance to be repugnant to natural justice, equity and good conscience.[15] The learned trial judge also referred to the dictum of Niki Tobi JCA (as he then was), in a 1997 case where he held that “…on my part, I have no difficulty in holding that the Oli-Ekpe custom of Nnewi is repugnant to natural justice, equity and good conscience."
In 2014, after about 33 years in the Nigerian judicial system Gladys Ukeje finally got the judgement all Igbo women had been waiting for[16]; the Supreme court of Nigeria in a unanimous pronouncement voided the Igbo custom which excluded female children from inheritance.[17] It is important to point out that both the High court and the Court of appeal like the Supreme court found the Igbo traditional law that excludes a female child of a deceased from inheritance in his estate void for being in contravention of the constitution of the Federal Republic of Nigeria.
Even though the Supreme has given its judgement on the issue in my opinion, I believe it will take the next couple of years for us to be able to see if the decision is welcomed by the Igbo people. Although so many Igbo people I have spoken to have said it is a welcome development, same cannot be said of an average Igbo person who still lives within the community. One thing is certain though majority of the women I have met are happy about the outcome of this case. So many people followed the development of this case right from the court of first instance up to the apex court and are thus happy with the outcome. It is definitely a win for the Igbo female folk.
In conclusion, I do not think customary marriages are bad, in my opinion there is so much uncertainty surrounding them because these are not written or codified laws so they are subject to change since only evidence adduced from witnesses are relied on to establish their existence. Consequently, women should understand that marriages contracted under customary law do not have the clout to sustain them in times of adversity.[18] The court and registry marriages are the best if a woman seeks marital security.[19]
[1] Hon. Judge, Federal Capital Territory Customary Court, Abuja.
[2]Oke Efagene, ‘How to get married legally in Nigeria’, Pulse.ng March 2015<http://pulse.ng/weddings/civil-weddings-how-to-get-married-legally-in-nigeria-id3586539.html>accessed 16 November 2016.
[3]National mirror online, ‘Registry Marriage: How secure is your ‘legal’ union?’ <http://nationalmirroronline.net/new/registry-marriage-how-secure-is-your-legal-union>accessed October 2015.
[4] Obiekwe v Obiekwe [1963] 7 ENLR 196.
[5] Marriage Act 1990 Laws of the Federation of Nigeria.
[6] Okwueze v Okwueze [1989] 3 NWLR 109.
[7] Margaret C. Onuka, Family law (Spectrum Books ltd 2002).
[8] The Queen v Bartholomew Princewell [1963] NNLR 54.
[9] MA 1990, S36.
[10] Osho v Phillips [1972] 1 NLR 279.
[11] Mrs Bridget Motoh v Emmanuel Motoh [2010] LPELR 8643 CA.
[12] ibid.
[13] Odogwu v Odogwu [1992] 2 NWLR 225.
[14] Okafor v Okafor [2016] LPELR 40264 CA.
[15] Motoh (n 10).
[16] Paul Osas,‘Here is a name all Ibo women should remember- Gladys Ada Ukeje’ Scoopng <www.thescoopng.com/2014/04/16/name-ibo-women-remember-gladys-ada-ukeje/>accessed 16 November 2016.
[17] Ukeje v Ukeje [2014] LPELR 2 SC.
[18] (n 2).
[19] ibid.
Very educative and insightful article.
ReplyDeleteWell done Hon Fati Nahuche!