The Legal Effects Of Customary Law Marriage In Nigeria.
The conflict in customary law is a theme that permeates the history of colonialism in Nigeria and indeed Africa. It is a fact that, global interaction has created a world of cultural evolution among nations but in our situation, the many years of subservient relationship with our colonial and slave masters had eroded our traditional safeguards against the adoption of cultural waste that are dumped on us, thereby inheriting two societies that are cumbersome and oftentimes pose as an economic burden.
The customary marriage has suffered the same fate just like all other good things that give us identity as a people. Our customary marriage has been subordinated to statutory marriage to fulfil the so-called “civilisation mission” of our colonial masters. And in some countries like South Africa, customary marriages were at some point not recognised owing to their polygamous nature .
The non-recognition of customary marriages sometimes in this country (South Africa) led to severe hardship, in that children from such marriages were not regarded as legitimate and wives of customary marriages were not given the same status as wives from civil marriages in matters of intestate succession and maintenance . This continued for years until The South African Law Reform Commission wrote several Discussion Papers and made proposals regarding the recognition of customary marriages which said agitations gave birth to The Recognition of Customary Marriages Act 120 of 1998 which then recognised customary marriages.this essay discusses the legal effect of customary marriages in nigeria
Introduction
1.1 Background of the Study
Marriage is a universal institution recognized and respected throughout the world. As a social institution, marriage is founded and governed by the social and religious norms of society. Therefore, the sanctity of marriage is a well-accepted principle in the world community. Marriage is the root of family and society. However, by looking at the types of marriage in Nigeria, therefore, unlike most European countries two marriage systems are recognized in Nigeria, namely, monogamous and polygamous. These two marriage systems differ fundamentally from character and incidents. It is therefore important to take this duality into account in any consideration of marriage laws in Nigeria in order to avoid confusion. In all cases concerning marriage, the lawyer in Nigeria must first determine the type of marriage involved before he can apply the appropriate law.
However, monogamous marriage is Nigeria is the same as in England. It is marriage that Lord Pensance called voluntary union for the life of one man and one woman to the exclusion of all others, whereas polygamous marriage can be defined as a voluntary union for life of a man with one or more wives (Cottrell, 2013). Its essential characteristic is the ability of the man to take as many women as he wants. The mere fact that he has at one time only one woman does not affect the character of the marriage as long as the capacity to take more women is preserved. Generally, there is no limit to the number of wives a husband could take under the polygamous system. It always depends on its affluence.
Marriage is an institution that represents all the behaviors, norms, roles, expectations and values associated with the legal union of a person or a union of persons who are most often of the opposite sex involving a man and a woman. This is one of the major events in life that marks the transition to mature adult life and represents a lifelong commitment of two people to each other.
As a system, marriage is carrying out, following a series of colossal procedures as practiced and understood by the cultures of the parties concerned. Different communities recognize patterns and types of marriages according to their cultural / social worldview. Nigeria, as part of the wider African society, has been generally characterized by arranged marriages, polygamous marriages and others. Old tribal traditions disappear and more Nigerians adopt Western marriage concepts. This trend has led to an unprecedented increase in customary law marriage in Nigeria. Boateng, cited in Ardayfio-Schandorf, observed that family origins and ethnic origins that were of considerable importance in the traditional practice of marriage were replaced by love and affection between partners.
1.2 Statement of the Problem
The dynamics of culture and human relations allowed researchers to observe many influences, manifestations and occurrences in marriage within Nigerian society. These manifestations and occurrences have had a significant impact on the stability of marriage in modern Nigerian society. A recent observation of people’s attitudes towards marriages in the country has revealed the alarming negative effect of these events (Animasahun and Fatile 2011). The factors that militate against the quality of marriage in Nigerian society of the 21st century have been the subject of discussions between Nigerian social psychologists, religious authorities, behavioral psychologists, sociologists and anthropologists.
However, substantial research has reinforced cultural differences as a source of instability, conflict or dissatisfaction for couples, rather than an opportunity for transformation. Many conclude that intercultural couples are confronted with higher levels of marital challenges; Are more prone to failure; and are rooted in conflicts related to dormant allegiances of worldview, family structures and models of communication. This work explores the dynamics that promote the legal effects of customary marriage in marriages in Nigeria to determine the prospects for these marriages in the 21st century. It also shows that intercultural marriages offer opportunities for a positive transformation of the negative tendency of marriages rather than widespread opinions that present them as intrinsically problematic.
1.3 Purpose of the Study
The aim of the contemporary study was to examine the legal effects of customary law marriage in Nigeria. The specific objectives of this study are:
- To define marriage, types of marriage in Nigeria.
- To identify the types of customary law marriage in Nigeria and the requirement for a valid customary law marriage in Nigeria.
- Examine the legal effect of customary law marriage and the effects of contacting statutory marriage with the same person and with a 3rd party.
- Explore the legitimacy of children of customary law marriage, rights of women in intestate succession and the resolution of customary law marriage in Nigeria.
- Make recommendations that will help solve the problems of inter-cultural marriages.
1.4 Significance of the Study
The contribution of this study to Nigerian society cannot be overemphasized. This survey aims to bridge the gap in the existing literature on customary marriages in Nigeria. Most books on the subject do not provide a sufficient theoretical framework for customary marriage.
The study will also provide information to future spouses, families and adults who need to learn about the legal effects of customary marriage in Nigeria. The study will be useful to future researchers on the subject. It will complement the many literatures on the subject in the Library. The work will be useful to posterity. Ethnic families may want to learn strategies to deal with any threat of polygamous conflict in their marriages and life.
1.5 The Scope of the study
The study will cover the whole of Nigeria. The marriage of customary law throughout the study is seen from the point of view of the Yoruba, marrying Igbo, Efik or Hausa, etc., or vice versa. This work not only examines the concept of marriage, but takes a step forward in identifying the problems that affect customary marriage in Nigeria. It also highlights the effects of these problems as well as traces the future of customary marriage law in Nigeria.
1.6 Research Methodology
The methodology used in this study is the historical research method. It used primary and secondary data collection sources. Since marriage is universally recognized as the basis of group life and as a requirement for human survival, primary sources of data collection would be drawn from oral interviews of respondents as a reliable means of understanding individual perception of the subject. The legal effects of customary marriage in Nigeria have attracted the attention of a considerable body of literature.
This study would examine relatively recent publications in books, newspaper articles and unpublished theses relevant to the study data that would be collected, organized and analyzed critically.
1.6 Definition of Terms
Marriage
The term “marriage” as well as culture does not lend itself to a universal definition. Marriage is seen as a close partnership of two different people of opposite sex who have concerted to live and work together as one entity.
Neolocal Residence
The neolocal residence is a type of conjugal residence where a couple establishes an independent domestic unit after marriage. In this type of residence, the couple does not live with their parents; Rather than they live with each other.
Matrifocal Family
The conjugal family is a family that is centered on a woman and her children. In this case, the fathers (s) of these children are present intermittently in the life of the family and occupy a secondary place. The mother of the child is not necessarily the wife of one of the children’s fathers.
Matrilocal Residence
The matrilocal residence refers to the domicile in a group whose core includes the mother of the bride. In this type of conjugal residence, the couple lives with the mother of the bride.
Patrilocal Residence
The patrilocal residence is a type of conjugal residence where the nucleus revolves around the father of the groom. A patrifocal family is a family centered on the man and family of his father.
Conclusion and Recommendation
From the foregoing discussion, which surround this type of marriage especially in some select jurisdictions and indeed Nigeria, particularly in the area of to customary one,. We also looked at the decision of the Supreme Court of Nigeria which tilts in favour of the conversion theory.
For all we have discussed above, particularly as regards Nigeria, it is recommended as follows:
- That there is a need for the National Assembly to amend the Act in order to clarify the status of an earlier customary marriage between a couple where the same couple subsequently contract a marriage to each other under the Act.
- Until the Marriage is amended by the National Assembly to clarify the status of the earlier customary marriage, it would be advisable for parties not to contract the two types of marriage. They should either marry statutorily or under customary law. They should not contract a customary marriage and a statutory marriage. They should choose one system of marriage. For example in Zambia, a couple must choose one form or marriage or another; they may not be married under both civil and customary systems simultaneously .
- That there is need to have records of all marriages celebrated in Nigeria, be it statutory or customary. Customary marriages in Nigeria just like in Swaziland and South Africa should be registered, (it does not stop it from being polygamous) as registration would even help generate revenue for the Government.
- All marriages should also be noted on public register. A couple who have gone through both type of marriage (that is the customary, then statutory) should simultaneously fulfil the requirements for registering their marriage as either a civil or a customary marriage, the law should require them to choose one form or other at the time of registration, after the marriage officer(s) have explained the implications of both choices.
- The spouses should have a firm mind whenever contemplating on marriage, they should either contract a marriage according to the custom which is a customary law marriage, or they should go for a pure Act marriage since both are recognised in Nigeria. The Supreme Court confirmed this in Jadesimi v. Okotie-Eboh that the status of being married under Islamic law or Customary Law is well recognised in this country.
- That couples should be bound by the first form of marriage that takes place between them. They cannot change their minds later about whether they want a customary marriage or a civil marriage. They must choose one type of marriage and stick to it. The motivation for this rule is that allowing conversions would strengthen the perception that customary law marriages are not equal in status to civil law marriages. This rule will not serve as a bar to traditional ceremonies where couples have actually chosen to marry under civil rites; the traditional ceremonies may be observed, but will have no legal effect just like religious marriage in some European countries mentioned earlier in this work and in In Rwanda , where it is possible for a couple to marry under both civil law and customary law, but only civil law marriages are recognised by law.
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