Effect Of Customary Law Before Statutory Marriage

It is a common practice in Nigeria for parties who intend to contract a statutory marriage to marry first under customary law before the solemnization of the statutory marriage. This practice may be explained by the fact that though Western civilization and Western culture have permeated Nigerian society, most people, even the most sophisticated, understandably regard themselves as bound by the customary law of their place of origin.

The Nigerian Marriage Act has given validity to this practice by enabling persons who are married under customary law to marry each other under the statute. Some important legal questions arise from this practice. It is uncertain whether the statutory marriage supersedes, for all intents and purposes, the previous customary-law marriage, or if the customary-law marriage is merely put into abeyance, to revive after the subsequent statutory marriage has come to an end. There is also the question of whether both marriages co-exist. These and other related questions deserve some comment. Some of these questions arose in two decided cases. In Asiata v Goncallo,196 Alii Elese, a Yoruba, was taken to Brazil as a slave. There he married Selia, an African freed woman.

They were married first in accordance with Moslem rites, and then in accordance with Christian rites in a Christian church in Brazil. There were two daughters of the marriage. Subsequently, Alii Elese returned to Lagos with Selia. There, during the lifetime of Selia, and after the passing of the Marriage Ordinance 1884, he married Asatu in accordance with Moslem rites. By Asatu he had one child, Asiata, the plaintiff in the case. On the death of Alii Elese, the question arose as to which of his children should be entitled to his estate. The court had to decide whether the marriage with Asatu was legal.

If the Christian marriage superseded the previous customary union, then Asatu's marriage might have been invalid. On the other hand, if the Moslem union remained valid, Elese could validly contract a second Moslem marriage The Divisional Court held that since Alii had contracted a Christian marriage outside the Colony, die case of Cole v Colew applied, so that the second marriage was invalid. On appeal, the Pull Court held that the Christian marriage was merely one as to form. Consequently, the marriage to Asatu was legal and her children were entitled to participate in the distribution of the estate of Alii. The court adduced a number of reasons for reaching the conclusion. First, the parties were taken against their will as slaves to Brazil, which is a Christian country.

Second, the court pointed out that Nigeria was not a Christian country, and by the customary law (including Islamic Law) which is applicable, a man can legally have several wives. Third, emphasis was given ID the fact that the parties lived and died as Moslems. It was merely by the accident of their being in Brazil as slaves that they had to comply with the local form of marriage, which was Christian. Last, it was said that Selia did not object to the second Moslem marriage. However, the decision of the court here reflects the special circumstances of the case. Consequently, the decision does not lay down general principles of law applicable in ordinary cases where a customary-law marriage precedes a statutory union between the same parties. It is, therefore, submitted that this case is not an authority for the proposition that a subsequent statutory or Christian marriage does not supercede a previous customary-law union.

The other relevant decision is Ohochuku v Ohochuku.m The parties were Nigerians and christians. On 1 January 1949 they were married by customary law at Akarahia, Isiokpo, Nigeria. In 1950 the husband proceeded to study in England. The wife joined him there in 1953. On 24 July 1953 they went through a second ceremony of marriage at St. Pancras register office in London. They did so to enable the wife to produce a marriage certificate in England, and not because they had any doubt about the validity of the Nigerian marriage. Later, the wife petitioned for divorce. Wrangham, J, pronounced a divorce nisi for the dissolution not of the Nigerian marriage but of the marriage in London. He took this step on the ground that English courts of divorce have no jurisdiction to dissolve polygamous marriages.

This case cannot be regarded as an authority for the view that a decree of divorce granted in respect of a subsequent monogamous marriage does not dissolve a previous customary-law union. The case involved a conflict-of-law problem. By English conflict-of-law rules, English courts do not possess jurisdiction to dissolve polygamous marriages, although such marriages are recognized for the puiposes of determining status and other matters. Consequently, the unwillingness of (he judge to dissolve the customary-law union is understandable. The attitude of a Nigerian court faced with similar facts would understandably be different. It is submitted that according to Nigerian law the decree nisi would dissolve both marriages. Wragham, J, accepted the evidence of Nigerian law to this effect. Again, with regard to the incidents of marriage, the correct legal position is that parties married under the Marriage Act are entitled only to the rights and obligations of that system. Whatever customaiy-law rights they have acquired from the previous customary-law marriage are superseded. But matrimonial relief can only be sought in respect of acts or events which took place after the celebration of the subsequent statutory marriage.

To answer the questions raised earlier, the correct positionis that a subsequent statutory marriage supersedes a previous customary-law union. Support for this view is found in two legal principles. Fist, the relationship into which parties enter solemnizing a statutory marriage is one which is unknown to customary law. Therefore a different system of law will apply to the situation. Second, marriage under the Marriage Act clothes the parties ti it's rights and obligations which are unknow to the customary law.

Some points remain to be disposed of in this connection. It is uncertain where a susequent statutory marriage is dissolved, if the husband retains his customary-law right under the earlier union to reclaim the bride-price. So far as the writer is aware, the point has not been raised squarely before any court in Nigeria. On principle, there are no valid grounds for depriving the husband of that customary-law right.

But it seems that the answer depends on the characterizauon of the husband's claim for a refund of bnde price as either a matrimonial or a contractual right. If the right is regarded as a matrimonial right, then on principle its enforcement will be lost by the conversion of the customary-law marriage into a statutory one. The effect of the conversion is to substitute the matrimonial rights under statutory marriage for those of customary law Bride-price is not a feature of statutory marriage, and there is neither the obligation to pay it nor the right to claim its refund under that system.

On close examination, the obligation to pay dowry and the right to its refund are not matters arising out of the relationship of husband and wife. They cannot therefore be properly regarded as matrimonial rights. Rather they arise from a contract entered into in contemplation and in consideration of the marriage, and are therefore contractual rights.

Support for this view is found in the principle formulated in two English cases, mspite of the fact that they dealt with Greek dowry and Indian dower, which differ radically from the Nigerian dowry. In Phrantzes v Argenti, a daughter, a Greek national, brought an action in England against her father to enforce the payment to her of marriage dowry as prescribed by Greek law. By Greek law a lather was obliged to constitute, on behalf of his daughter entering on marriage, a dowry in accordance with his fortune, the number of his children, and his social position. Parker, CJ, held that the action was an action in personam to compel the father lo pay dowry, which was enforceable in England.

In Shahnaz v Rizwan the parties were married in India in accordance with Islamic law. The marriage certificate provided that the wife was lo have deferred mehar or dower. After the dissolution of the marriage, the wife brought an action in England for the recovery of the dower on the ground that the claim was a contractual one enforcing a proprietary right arising out of a lawful contract of marriage In reply, the husband argued that the court had no jurisdiction as the marriage was polygamous in character, and that, moreover, the claim was in the form of a matrimonial relief. Winn, J, refused to regard the claim as a matrimonial right arising from the relationship of husband and wife. In the opinion of the learned judge, the action was one to enforce a contract entered into in contemplation of or by reason of a polygamous marriage.

On the other hand, there is the important point that the customary-law right of a husband to claim the refund of dowry is not incompatible with the rights and obligations of statutory marriage, nor is its application repugnant to natural justice, equity and good conscience.

Again, if the subsequent statutory marriage is void ab initio, could the parties thereto be regarded as husband and wife under the preceding customary-law marriage? This question may be vital, not only as between the parties to the purported statutory marriage, but also as to the legitimacy of their children bora after that marriage. It is submitted that the invalidity of the subsequent statutory marriage does not detract from the effectiveness of the prior customary-law union. The parties, to all intents and purposes, remain legally married under that system, and their children should be regarded as legitimate issues of a customary-law marriage.

Where the subsequent marriage is voidable, it will have the same effect on a previous customary-law marriage as a non-defective statutory marriage. Consequently, a decree of nullity in respect of the voidable statutory marriage will dissolve all marital ties between the parties.




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