Woman To Woman Marriage In Nigeria (Customary Marriage)

Under some customary laws in Nigeria, certain marriages are contracted which may superficially be described as the union of two women. On the surface such arrangement may be said to contravene the basic precept of marriage as a union between a man and a woman. However, there is much in these cases than meets the eye.

The true position in each case is that there is at the background a man in whose name or behalf the marriage is contracted. Some illustrations may serve to bring out the point. Sometimes, a barren married woman, as a means of securing her position in the family, provides her husband with funds for the bride-price in respect of a new wife who is expected to bear children in her place. In that case, the marriage is in fact contracted in the name of the husband and there is no question of one woman being married to another.

In some parts of Nigeria, an unmarried but prosperous woman who desires to have a family of her own may, if she cannot bear children, marry' another woman to do so on her behalf. She attains this objective by providing the bride-price for a new wife who while living with her bears children. Usually, internal family arrangements are made whereby the new wife bears children by specially chosen male members of the family or by a paramour.

The marriage is intact contracted in the name of a male member of the family of the financier thereof, and may be regarded as a type of 'ghost marriage'. In Meribe v Egwum the Supreme Court was called upon to pronounce on the validity of the first type of woman to woman marriage described above. The facts of the case were as follows. The land in dispute belonged to one Nwanyiakoli, who died without issue in 1937. She was one of the wives of Chief Egwu who pre-deceased her in 1935.

The plaintiff who contended that the land devolved on him under customary law, claimed that because Nwanyiakoli was barren she married one Nwanyiocha (the plaintiffs mother) for her husband as a wife. Under the applicable customary law, the issues of such a marriage arc regarded as the issues of the barren woman. The defendant who also relied on customary law, contended that on the death of his grand father, Chief Egwu, his own father, Meribe, being the eldest surviving son, inherited Nwanyiakoli, she being one of the deceased's wives. On her death, Meribe inherited her, properties which later devolved on the plaintiff and other sons of Meribe.

He also submitted that woman-to-woman marriage, is contrary to public policy and good conscience. The trial court found for the plaintiff. On appeal, the Supreme Court dismissed the appeal. Madarikan, J.S.C. who delivered the unanimous opinion of the court dealt specifically with validity of die alleged woman-to-woman marriage thus:

"In every system of jurisprudence known to us, one of the essential requirements for a valid marriage is that it must be a union of a man and a woman thereby creating the status of husband and wife. Indeed, the law governing any decent society should abhor and express its indignation of a 'woman to woman' marriage; and where there is proof that a custom permits such an association, the custom must be regarded as repugnant by virtue of the provision 14(3) of the Evidence Act and ought not to be upheld by the court.

On the status of the particular relationship before it, the court observed that,

"we however do not think that on a close examination of the facts of this case, there was a woman to woman' marriage between Nwanyiakoli and; Nwanyiocha.The true nature of the arrangement was appreciated by the learned trial judge when he, righfly in our view, made the following observations: "the facts disclosed in evidence did not show that Nwanyiakoli married Nwanyiocha for herself, a fact naturally impossible but that she 'married' in that context is merely colloquial, the proper thing to say being that she procurred Nwanyiocha for Chief Cheghekwu to marry her. There was no suggestion in evidence that there was anything immoral in the transaction".