The question above has come up a number of times for determination. Some people are of the view that after dissolution of a subsisting marriage, that the subsequent one contracted before dissolution of the former marriage is valid. Whilst a large number of people hold a deferring view.
What is marriage?
It is universally accepted that marriage is a union between two parties usually a man and woman who has agreed to live together and cohabit to the exclusion of others. In Nigeria two types of marriages is recognised to wit; polygamous marriage and monogamous marriage. The scope of this article will be restricted to monogamous marriage.
It is pertinent to note that a monogamous marriage in Nigeria is the same as in England. It is a marriage which Lord Penzance described in Hyde V Hyde (1886) LRIP&D 130 as the voluntary union for life of one man one woman to the exclusion of all others.
S. 256 of the evidence Act 2011 as amended defined a wife and husband to mean respectively the wife and husband of a marriage validly contracted under the marriage Act, or under Islamic law or customary law applicable in Nigeria and includes any marriage recognised as valid under the marriage Act.
There are basically two laws regulating marriage under the act in Nigeria and they includes the Matrimonial causes Act 2004 and the Marriage Act 2004.
The marriage talked about under this heading is marriage under the Act, otherwise known as statutory marriage and customary marriages converted by virtue of a subsequent to the same person under the Act.
It does not apply to parties married only customarily and have not undergone any conversion through a subsequent statutory marriage. This type of marriage does not need require to go to court to seek for a formal dissolution of marriage. Mere returning the bribe prize customarily will suffice.
It is pertinent to note that a Marriage is valid if contracted in accordance with the law. The laws that regulate marriage in Nigeria are the Marriage Act 2004 and the Matrimonial causes Act 2004.
NULLITY OF A VOID MARRIAGE.
There are many grounds for nullity of a void marriage but I shall focus on the ground related to this topic is that either of the parties at time of marriage was lawfully married to some other person,
S. 33 (1) of the Marriage Act and S. 35 of the Marriage Act; Amobi v Nzewu (2014) 2 NWLR Pt 1392 – trial court went as far to suggest that the second wife should be arrested and trialled for bigamy.
The implication of this is that where a person goes ahead to contract a subsequent marriage, without dissolving the subsisting marriage, it renders the subsequent marriage void ab initio and of no legal effect. In the eyes of the law, nothing has taken place.
With due respect to the Constitution of Nigerian, in void marriages children produced out of that marriage are illegitimate except there is an acknowledgement of some sort by the man which gives the children a right to inherit property but this is not the case vis a vis the woman involved in a void marriage.
Furthermore with respect to a void marriage,the parties themselves can regard the marriage as avoided without resort to the court for a decree of nullity unlike a voidable marriage which can only be dissolved by an order of court of competent Jurisdiction.
A void marriage is one that has never been in existence. In practical terms it means that the parties have gone through a ceremony of marriage but have never acquired the status of husband and wife owing to one impediment or the other.
Lord Green in De Reneville V De Reneville (1948) AllER 56 out succinctly put it thus:
“A void marriage is one that will be regarded in every court in any case in which the existence of the marriage is in issue as never haven taken place and can be so treated by both parties to tie without the necessity of any decree annulling it.
This view was adopted in Mbonu v Mbonu (1976)I FNR 57. A void marriage is the one that has never existed.
In answering the poser above, it is pertinent to note that a marriage that is void ab initio cannot be given legal effect by the conduct of the parties thereto. Even where the party dissolves the subsisting marriage after contracting the subsequent marriage.
What matters is when the subsequent one was contacted, was it contracted when another valid marriage was still subsisting? So it is immaterial to say that the subsisting marriage was dissolved later or a party to the subsisting marriage had died. What matters is at the time the subsequent marriage was contracted..was there a valid subsisting marriage? If the answer is in the affirmative, which of course it is, a subsequent marriage will not have a legal status even after the subsisting one has been dissolved.
No marriage in Nigeria shall be valid where either of the parties thereto at the time of the celebration of such marriage is married by native law or custom to any person other than the person whom such marriage is had. To invalidate a marriage celebrated under the Marriage Act on the ground of a previous marriage under customary law, the previous marriage must be proved with a high degree of certainty. Osamwonyi v Osamwoyi(1972) IO SC . b. c. Where a person who is married under the Marriage Act purports to contract a customary law marriage with a third party during the subsistence of the first marriage; it is necessary that the subsisting statutory marriage must have been contracted in accordance with the Marriage Act in Nigeria. Any customary law marriage, with a party such statutory marriage purports to contract subsequently, is null and void. Where a person who is a party to a subsisting marriage purports to contract another marriage with a third party either under the Marriage Act or under a foreign marriage law; the position is the same where a person who is married under a monogamous system abroad attempts to marry a third party in Nigeria under the Marriage Act; in both cases, the subsequent marriage is void ab initio as the person lacks the capacity to contract such marriage during the subsistence of the previous one. S. 33(1) was considered in Oshodi v Oshodi (1963) 2AllNLR 214, where a wife Folashade petitioned for divorce on the grounds of cruelty and adultery. The respondent contracted a valid marriage in 1954 with one Sikiratu, under Yoruba Islamic Law and Custom pertaining to the Ahmadiya Muslim Movement in 1955, the respondent and the petitioner were married under the Yoruba native law and custom. The petitioner knew of the 1954 marriage and all three lived together before the petitioner and the respondent left for England. In 1956, the petitioner and the respondent went through the English form of marriage. The respondent contended that the English marriage of 1956 was a nullity and consequently the petitioner was not entitled to the relief sought. The court held that the 1956 marriage was not celebrated in Nigeria and as such Section 33(1) was relevant. However, the correct approach to problems of marriage under a foreign law should have been through the Conflict of Law rules: capacity to marry is determined by the lex domicilii of the parties. If by that law a person was regarded as a married man he cannot contract a valid monogamous marriage with another person. The second marriage constitutes the offence of bigamy strictu sensu in Nigerian Law vide Section 370 of the Criminal Code Act and R v Princewill (1963) NNLR 54
RECOMMENDATIONS & ADVICE
Where parties contracted a void marriage and thereafter dissolves the subsisting marriage, since their subsequentmarriage is void ab initio. It is pertinent to contract another customary wedding or Statutory marriage in a marriage registry. Accompanied by few relatives and celebrated in a small way. This is to confer Legal status on the marriage.
And where parties have already contracted the subsequent void marriage without plans or dissolving the subsisting marriage, some sort of arrangement can made to protect the wife and children of the void marriage to ensure they become entitled to inherit. In case of death of the man, the wife in the subsisting valid marriage has a stronger claim.
S. 69 of Matrimonial Causes Act seem to have a provision for the protection of party in a void marriage. It provided that marriage” includes a purported marriage that is void, but does not include one entered into according to Muslim rites or other customary law, and “children of the marriage” includes-
(a)any child adopted since the marriage by the husband and wife or by either of them with the consent of the other;
(b) any child of the husband and wife born before the marriage, whether legitimated by the marriage or not; and
(c) any child of either the husband or wife (including an illegitimate child of either of them and a child adopted by either of them) if, at the relevant time, the child was ordinarily a member of the household of the husband and wife, so however that a child of the husband and wife (including a child born before the marriage, Whether legitimated by the marriage or not) who has been adopted by another person or other persons shall be deemed not to be a child of the marriage.
The effect of this provision is that a party to a void marriage can institute an action pursuant to S. 70 of the Matrimonial causes Act for the maintenance. With a combined effect of S. 69 another implication therefrom is that single mothers are excluded from bring applications under this section.
The maintenance in Section 70 of the MCA in relation to void marriages only relate to children of the purported marriage and not the wife of the purported marriage.
For the wife of a void marriage to protect her interest in the marriage in terms of inheritance and administration of assets, there should be a Memorandum of Understanding between the parties of that void marriage. This is what the the courts can enforce.
Written by Mpi Elton Chizindu Esq