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EFFECT OF STATUTORY MARRIAGE WHEN PRECEDED BY CUSTOMARY MARRIAGE WITH ANOTHER PARTY IN NIGERIA
1.1 Background to the Study
The institution of marriage is perhaps the oldest form of human interaction and indeed the root of the family and society.1
The family is a basic social unit which consists of a husband and wife and their children. It is not necessary that all these should be members of the family at the same time. A husband and wife can be considered as a family before the birth of their first child or after their children have left home to many and establish families of the own or some spouses will remain childless. This type of family is descriptive of a nuclear family. There is also the extended family which comprises a group of closely related people. Marriage is therefore the basis of the family.
There are many type of marriage but for the purpose of this work, attention will be focused mainly on customary marriage and statutory marriage.2
These two types of marriage are prominent in Nigeria and more often than not, parties undergo ceremony of formality under customary law which entitles them to be husband and wife under the law.
The same parties may also undergo ceremony or formalities under statutory law when confer on them the status of husband and wife under the relevant statute.
Consequently, the couple is married legally under customary law and under the statute irrespective of which comes first as long as it is with the same parties or even with another party.3
The customary marriage is mostly regulated by the customary laws while the statutory marriages are regulated by the marriage Act. It is to be observed that a common practice exists in Nigeria for parties who intend to contract a statutory marriage to contract first under customary law before the solemnization of the statutory marriage. This practice may be explained by the fact that though western civilization, western culture have permeated into the Nigeria society, parties, even the most sophisticated, understandably regard themselves as bound by the customary law of their origin. The Nigeria marriage Act has given validity to this practice by enabling persons who are married under the statute, most often, parties contract statutory marriage and thereafter contract a second customary marriage with another party.4
The aim of this project is to establish some important legal question that arises from such practices.
These are certain essential elements that must be present before a marriage could be said to be valid.
This project wishes to discuss there essential elements; the legal effects of both customary and statutory marriage; examine the legal issues that arise when same parties many under customary law and proceeded to have a second statutory marriage; examine issues that arise when parties under take statutory marriage and later take whether both marriage with another party. The question of whether both marriages co-exist and the rights of members of the family will be examined.
Finally, the project will examine what the law has done to mitigate problems likely to be cause by the secondary instance where a man after celebrating a statutory. Marriage goes ahead to celebrate a second customary marriage with another party.
Suggestion will also be proffered for better implementation of the law.
1.2 Statement of the Problem
It is a 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.
The Nigerian Marriage Act has given validity to this practice by enabling person who are married under customary law to marry each other under the statute. Some important legal questions arise from this practice. It is uncertain whether the statutory marriage supersedes, for all intents and purposes, the previous customary – law marriage is merely put into abeyance, to revive after the subsequent statutory marriage has come to an end. There is also the question of whether both marriages co-exist. These and other related questions deserve some comment. Some of these questions arose in two decided cases. In Asiata V Goncallo, 196 Alii Elese, a Yoruba, was taken to brazil as a slave. There he married Selia, an African freed women.
They were married first in accordance with moslem rites, and then in accordance with Christian rites in a Christian church in brazil. There were two daughters of the marriage. Subsequently, Alii Elese returned to Lagos with Selia. There, during the lifetime of selia, and after the passing of the marriage ordinance 1884, he married Asatu in accordance with moslem rites. By Asatu he had one child, Asiata, the plantiff in the case. On the death of Alii Elese, the question arose as to which of his children should be entities in his estate. The court had to decide whether the marriage with Asatu was legal. If the Christian marriage superseded the previous customary union, then Asatu’s marriage might have been invalid. On the other hand, if the moslem union remained valid, Elese could validly contract a second moslem marriage The Divisional Court held that since Alii had contracted a Christian marriage outside the colony die case of Cole V Colew applied, so that the second marriage was invalid. On appeal, the pull court held that the Christian marriage was merely one as to form. Consequently, the marriage to Asatu was legal and her children were entitled to participate in the distribution of the estate of Alii. The court adduced a number of reasons for reaching the conclusion. First, the parties were taken against their will as slaves to brazil, which is a Christian country