NIGERIA: Customary Law Marriage of Nigeria

There are essential and formal requirements for the celebration of valid customary law marriages. Although the details of such requirements vary from one locality to another, the broad principles are sometimes similar.

Capacity

The parties to a customary-law marriage must possess the capacity under that law to marry each other.

Age

Most systems of customary law in Nigeria do not prescribe any age for the solemnization of customary-law marriage. This lacuna in the rule of customary law has to a large extent encouraged a high incidence of child marriage, with all its attendant evils. While in some areas child betrothal is rampant, marriage does not in fact take place until the parties have attained the age of puberty.

Where a girl under sixteen years marries under customary law, the consumation of that marriage does not constitute the sexual offence of having unlawful carnal knowledge of her under the Criminal Code Act. This is because Section 6 of the Code defines 'unlawful carnal knowledge' to exclude sexual relations between husband and wife. Usually, where a provision of the Code applies only to the husband and wife of a statutory marriage, this is clearly specified. In the absence of such qualification it is submitted that 'husband and wife' includes the parties lo customary-law marriage, which is a system of marriage recognized by Nigerian law.

In some parts of the country, the minimum age for customary-law marriage has been fixed by legislation. The age of marriage under customary law is governed in the three Eastern States of Nigeria by the Age of Marriage Law 1956. Section 3(1) of the Law provides that 'A marriage . . . between or in respect of persons either of whom is under the age of sixteen shall be void'. If a party to such a void marriage is charged with any of the sexual offences under the Cnminal Code arising from having unlawful carnal knowledge of a girl, it is a good defence lo prove that the accused had reasonable cause to believe that the girl in question was his wife.

By section 4(1) of the Law, it is an offence punishable with six months' imprisonment or a fine of two hundred Naira for any person to ask, receive or obtain any property or benefit of any kind for himself or for any other person on account of marriage which is void under the Law. Similarly it is an offence to give, confer on, or procure from any person any property or benefit in relation to such void marriage. In these cases, ignorance of the parties' age is no defence unless the accused can prove that he took reasonable steps to verify the ages of the parties to the marriage. When the age of a person is in issue in a prosecution under the Law, the opinion of a qualified medical practioner on that question is sufficient and cannot be questioned in any court.

Under Section 6, no court shall take cognizance of any marriage that is made void by this legislation. This provision seems too wide for the purpose of attaining the objectives of the statute. It is submitted that, at least, it should be made possible for courts to determine the validity or invalidity of a marriage. This section should, therefore, be construed accordingly so as to make its contents reasonable.

In Emeakuana v Umeojiako.m the respondent claimed for an order that he is the legal and natural father of a female child born by the second appellant on December 27, 1972 and therefore entitled to be granted its custody. Both the second appellant and her father gave evidence in the lower court that the former was about fifteen years of age when the marriage with the respondent was celebrated. That piece of evidence was not contradicted or questioned. Obi-Okoye, J., (as he then was) held that the marriage in question contravened section 3(1) of the Age of Marriage Law and was, therefore, void.

Except for the cases which have reached the courts, evidence abound that the prohibition of the Age of Marriage Law is not observed in many parts of the four Eastern States.

In four Native Authority areas in three of the Northern States of Nigeria-Biu (Borno State), Idoma, and Tiv (Benue State), and Borgu (Kwara State) — the marriageable age for girls has been fixed by the various Declarations of Native marriage law and custom Orders made in respect of these areas.

The following ages for girls have been prescribed for the respective areas: Biu—fourteen years; Idoma — twelve years; Tiv — age of puberty;" and Borgu - thirteen years;In Borgu and idoma, any man who marries a girl below the stated age, and the father or guardian of such girl who permits such marriage, are guilty of an offence punishable with a fine of 100Naira or imprisonment for six months, or both.

>>>> Consent of the parties for Customary Marriages