It is universally accepted that marriage, being a union of man and woman, involves two persons of opposite sex. Consequently, sex constitutes an essential determination of a marriage relationship. In order to establish the existence of a valid marriage, it must be proved that the persons involved are man and woman.
A monogamous marriage in Nigeria as required by the Marriage Act 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. Marriage is not only an institution but also a contract. Before marriage can take place there must be an agreement between the man and the woman to enter into a union.
There are various forms of marriage recognised by the Marriage Act as valid in Nigeria. They include the following;
a.By the Registrar in the Marriage Registry S. 27 MA
b. By a minister of a religious denomination in a licensed place of worship S. 18 MA
c. By special licence under the hand of Minister of Internal Affairs S. 13 MA
d. By celebration abroad in a Nigerian Diplomatic Mission S. 50 MA.
BY A REGISTRAR IN THE MARRIAGE REGISTRY.
A valid marriage can be contracted in the Marriage Registry.
Section 11 of Marriage Act provides that
1) The registrar, at any time after the expiration of twenty-one days and before the expiration of three months from the date of the notice, upon payment of the prescribed fee, shall thereupon issue his certificate as in Form C in the First Schedule: Provided always that he shall not issue such certificate until he has been satisfied by affidavit-
(a) that one of the parties has been resident within the district in which the marriage is intended to be celebrated at least fifteen days preceding the granting of the certificate:
(b) that each of the parties to the intended marriage (not being a widower or widow) is twenty-one years old, or that if he or she is under that age, the consent hereinafter made requisite has been obtained in writing and is annexed to such affidavit;
(c) that there is not any impediment of kindred or affinity, or any other lawful hindrance to the marriage;
(d) that neither of the parties to the intended marriage is married by customary law to any person other than the person with whom such marriage is proposed to be contracted.
(2)Such affidavit may be sworn before a registrar, or before an administrative officer or before a recognised minister of religion.
The provision above succinctly provides for the legal requirements of a valid statutory marriage.
Further Section 27 of Marriage Act also provides that parties can contract a valid marriage before a registrar where they deem fit and also spells out the procedure in the registrar’s office.
It provides thus; 27 “After the issue of a certificate under section 11, or of a licence under section 13 of this Act, the parties may, if they think fit, contract a marriage before a registrar, in the presence of two witnesses in his office, with open doors, between the hours of ten o’clock in the forenoon and four o’clock in the afternoon, and in the following manner- The registrar, after production to him of the certificate or licence, shall, either directly or through an interpreter, address the parties thus- “Do I understand that you, A.B., and you, C.D., come here for the purpose of becoming man and wife?” If the parties answer in the affirmative, he shall proceed thus- “Know ye that, by the public taking of each other as man and wife in my presence and in the presence of the persons now here, and by the subsequent attestation thereof by signing your names to that effect, you become legally married to each other, although no other rite of a civil or religious nature shall take place, and that this marriage cannot be dissolved during your lifetime, except by a valid judgment of divorce; and if either of you before the death of the other shall contract another marriage while this remain undissolved you will be thereby guilty of bigamy, and liable to punishment for that offence.” Each of the parties shall then say to the other “I call upon all persons here present to witness that I, A.B., do take thee, C.D., to be my lawful wife (or husband).
BY MINISTER IN A RELIGIOUS DENOMINATION IN A LICENSED PLACE OF WORSHIP
Section 21 Marriage Act provides that Marriage may be celebrated in any licensed place of worship by any recognised minister of the Church, denomination or body to which such place of worship belongs, and according to the rites or usages of marriage observed in such church, denomination or body: Provided that the marriage be celebrated with open doors between the hours of eight o’clock in the forenoon and six o’clock in the afternoon, and in the presence of two or more witnesses besides the officiating minister.
Section 23 “A minister shall not celebrate any marriage except in a building which has been duly licensed by the Minister, or in such place as the licence issued under section 13 of this Act, may direct”.
Where the marriage takes place at a licenced place of worship, it must be celebrated by a recognised minister of the church denomination to which the licenced place of worship belongs and according to the rites of marriage of that church or denomination. The marriage is to be celebrated in open doors between the hours of 8.00am and 6.00pm in the presence of at least two witnesses besides the officiating minister. The Minister is not to celebrate the marriage until the registrar’s certificate is delivered to him by the parties.
In Bello v. Bello, the parties went through a form of ceremony of marriage at the Celestial Church of Christ, Oueen Elizabeth Road, Ibadan. The church issued them a certificate of marriage. It was adduced in evidence that the Celestial Church of Christ where the marriage took place was not licensed for the celebration of marriages. Kayode Esho JSP (as he then was)held that the marriage was celebrated in violation of Section 33(2) of the MCA 1970 and therefore void ab initio under Section 3(1)(c. ) of the M A 1970.
Furthermore he is not to celebrate it if he knows of any just impediment to the intended marriage. After the celebration of the marriage, the Minister is required to fill out in duplicate a marriage certificate which contains the names of the parties, the date of the marriage and the names of witnesses. The original copy of the certificate is handed to the parties while the duplicate is sent to the Registrar who enters it into a ” Marriage Register Book”.
See MARTINS V ADENUGA 1946 MLR 63.
MARRIAGE BY SPECIAL LICENCE
The Minister, if satisfied that there is no impediment to the proposed marriage and that the necessary consent has been obtained may grant a licence for the marriage to be celebrated, which licence will be dispensed with the giving of notice to the registrar and the issuing by the Registrar of a certificate of notice.
Section 13 of Marriage Act provides that the Minister upon proof being made to him by affidavit that there is no lawful impediment to the proposed marriage, and that the necessary consent, if any, to such marriage has been obtained, may, if he shall think fit, dispense with the giving of notice, and with the issue of the certificate of the registrar, and may grant his licence, which shall be according to Form D in the First Schedule, authorising the celebration of a marriage between the parties named in such licence by a registrar, or by a recognised minister of some religious denomination or body.
Special licence is granted, for instance, where, inter alia, the parties cannot wait for the prescribed period of twenty-one days after lodging a notice with a registrar. Further, such special licence is often granted where a public figure desires to contract a marriage quietly and without publicity.
BY CELEBRATION ABROAD IN A NIGERIAN DIPLOMATIC MISSION
Section 49, 50, 51 M.A
The marriage Act recognises celebration of marriage abroad in a diplomatic mission and regards it as valid when done in accordance with the provisions of the law.
Section 49 of the Marriage Act says that “subject to sections 50 to 53, a marriage between parties one of whom is a citizen of Nigeria, if it is contracted in a country outside Nigeria before a marriage officer in his office, shall be as valid in law as if it had been contracted in Nigeria before a registrar in the registrar’s office”.
Section 50 further added that for the purposes of this Act, every Nigerian diplomatic or consular officer of the rank of Secretary or above shall be regarded as a marriage officer in the country to which he is accredited.
The office used by a marriage officer for the performance of his diplomatic or consular duties shall be regarded as the marriage officer’s office for the purposes of this Act.
A marriage under the Act celebrated in any other place other than the places mentioned above in this article will not be recognised by law and ipso facto be void ab initio. See 33(1) (a)of the Marriage Act. So, a marriage will be invalid if celebrated in a church that is not licensed, or in private home unless authorised in a special licence.
1. Case laws
2. Marriage Act 2004
3. Matrimonial causes Act 2004.
4. Family law text by G. O OKPARA