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Family law

Is Traditional Marriage Legal in Nigeria?

Is traditional marriage legal in Nigeria
Is traditional marriage legal in Nigeria?
Is traditional marriage legal in Nigeria?

Traditional marriage, also known as customary marriage or native marriage, is a type of marriage that is celebrated according to customs.

Nigeria has a plural legal system that recognizes customary law and that is why traditional marriage is legal in Nigeria. As a result, it is not unusual for people to have a traditional marriage in Nigeria instead of a statutory marriage.

The legality of traditional marriage in Nigeria

Traditional marriage is legal in Nigeria by virtue of section 35 of the Marriage Act 1914. The section provides as follows:  ‘… nothing in this Act contained shall affect the validity of any marriage contracted under or in accordance with any customary law, or in any manner apply to marriages so contracted.’.

Note however that traditional law and customary law are governed by different laws, particularly in regard to inheritance.

If you only wanted to know whether traditional marriage is legal in Nigeria, there you have it. However ever if you would like to know more about this type of marriage, continue reading.

Essential elements of a traditional marriage in Nigeria

Statutory marriage can be proved by the production of a marriage certificate. However, when it comes to traditional marriage, things are a little different. The way traditional marriage is celebrated is not the same in all cultures in Nigeria, nevertheless when proving the existence of a traditional marriage, the Court would look into certain key elements.

In the case of Anionwu & Anor v Anionwu & Anor (2009) LPLER 8754(CA), the Nigerian Court of Appeal, citing a Supreme Court decision,1Agbeja vs. Agbeja (1985) 3 NWLR (Pt. 11) 19  held that ‘in proof of customary marriage the evidence of the Head of the family is desirable to prove receipt of dowry but that an eye witness account of the transaction is essential.’.

Also in the case of Okolonwamu & Anor v Okolonwamu & Anor, the Court of Appeal, citing the Supreme Court decision,2Agbeja v. Agbeja (1985) 3 NWLR (Pt 11) Pg.11. held that the most common feature of customary marriages in Nigeria is ‘… the payment of bride price and handling[sic] over of the bride to the groom. These are the least and basic requirements of any Nigerian customary marriage. Thus the proof of an existing customary marriage must contain the two.’.

From the above decisions of the court, it could be summed up that the two essential elements of a traditional marriage are:

  • Bride price (dowry).
  • Handing over of the bride to the groom.

Inheritance law applicable to marriages contracted under customary law

If you are contemplating a traditional marriage, one of the most important things you have to consider is inheritance under customary law. There are many customs in Nigeria and customary law of inheritance varies in various customs.

You have probably seen a common scenario in Nollywood movies where a spouse dies and his relatives come in a cruel manner to decide how his estate (properties etc) will be divided. Such a situation, though exaggerated in movies sometimes, might occur if the deceased person’s marriage were contracted under customary law and he dies intestate.3To die intestate means to die without leaving a will.

If marriage were contracted under statutory marriage, on the other hand, administration of a deceased’s spouse’s estate is would be governed by statutory law.4Note that if a person never married and dies intestate, his/her her estate would be administered by either customary law or statutory law depending on how the person lived his/her life.

For more on the distinction between traditional marriage and statutory marriage, see the post titled Traditional vs Statutory Marriage in Nigeria.

References

  • 1
    Agbeja vs. Agbeja (1985) 3 NWLR (Pt. 11) 19 
  • 2
    Agbeja v. Agbeja (1985) 3 NWLR (Pt 11) Pg.11.
  • 3
    To die intestate means to die without leaving a will.
  • 4
    Note that if a person never married and dies intestate, his/her her estate would be administered by either customary law or statutory law depending on how the person lived his/her life.

8 Grounds For Divorce in Nigeria

Grounds for divorce in Nigeria

The grounds for divorce in Nigeria can be found in the Nigerian Matrimonial Causes Act 1970 under sections 15 and 16. If you are a legal practitioner from another jurisdiction, you can refer to the said Act. The aim of this post is to explain the grounds for divorce in Nigeria in simple terms for the benefit of non-lawyers or students of law.

What is divorce?

What is divorce
Dissolution of marriage

Divorce, also called dissolution of marriage, is the separation of husband and wife by a court order (decree). After a divorce, either of the parties can marry again. Marrying someone else while there is still an existing statutory marriage constitutes a crime in Nigeria.

Meaning of grounds for divorce

Grounds for divorce simply means reasons for which a spouse (wife or husband) may apply for dissolution (divorce) of a marriage.

Definition of key terms used in the Matrimonial Causes Act

Below are some relevant key terms used under the Matrimonial Causes Act and their meanings:

Petition: the petition simply means the application for divorce.

Petitioner: a petitioner is a person who has made an application for divorce.

Respondent: a respondent is the opposite of the petitioner, ie the wife or husband of the person who has made an application for divorce.

Decree: this means an order of the court dissolving the marriage.

Dissolution: dissolution of marriage simply means a divorce.

To which marriages does the Nigerian Matrimonial Causes Act apply?

legal grounds for divorce in Nigeria

The grounds for divorce in Nigeria under the Matrimonial Causes Act apply to statutory marriages. The Act does not apply to traditional/customary marriages. For difference between statutory marriage and customary marriage, see this post.

Section 15 of the Matrimonial Causes Act provides the following grounds for divorce in Nigeria:

1. That the respondent has wilfully and persistently refused to consummate the marriage

The keyphrase under this ground for divorce is ‘consummation of marriage’.

What is consummation of marriage?

Persistent refusal to have kids in a Marriage
Persistent refusal to have a child in a Marriage

Consummation of marriage simply means to have a child in the marriage.

Thus where the husband or wife has persistently refused to have a child in the marriage, an application may be made to court for a dissolution of the marriage.

Note that the Act uses the word ‘persistently’. This means that mere refusal to have a child at some point in the marriage might not necessarily constitute a ground for divorce. For instance, a wife’s refusal to have a child before completion of a one year postgraduate course would not necessarily be a ground for divorce in Nigeria. The refusal must have been persistent enough to constitute a ground for divorce.

2. That since the marriage the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent

This means that an application for divorce may be made where one of the couple has had sexual intercourse with someone other than the their spouse. In such circumstance, the person making the application for divorce would need to provide evidence in court to prove that the other party cheated.

3. That since the marriage the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent

Behaviours that constitute grounds for divorce in a marriage

This is perhaps the broadest ground for divorce in Nigeria and one of the most used grounds in divorce proceedings as well.

Below are some behaviours that could constitute a ground for divorce under this ground:

  • Commission of rape, sodomy, or bestiality by a spouse.
  • When a spouse has become a habitual drunkard or a drug addict.
  • Where a spouse has been convicted of several crimes and has been sentenced to prison.
  • Where the respondent has habitually failed to provide the petitioner with reasonable means of support.
  • The repondent has a mental illness when a petition is filed and is unlikely to recover.
  • A spouse has been confined in a mental institution for a total of 5 years in aggregate since the marriage.

4. That the respondent has deserted the petitioner for a continuous period of at least one year immediately preceding the presentation of the petition

For instance, where a spouse abandons his/her spouse and travels abroad for a year, a petition for divorce may be made to the court.

The Matrimonial Causes Act uses the phrase ‘immediately before the presentation of the petition’. This means that where an abandonment occured two years ago for instance, a petition cannot be made under this ground if the spouse has since returned.

5. That the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition and the respondent does not object to a decree being granted

This means an application for divorce may be made where the spouses have lived in separate households for at least two years and the respondent does not object to the divorce.

Similar to ground 4 above, the living apart must have taken place immediately before the petition. Thus if the spouses have started living together before the petition is filed, then the court would not dissolve the marriage.

6. That the parties to the marriage have lived apart for a continuous period of a least three years immediately preceding the presentation of the petition

This ground is similar to ground five above. The differences are that the period is three years and it does not matter whether the respondent objects to the divorce or not.

7. That the other party to the marriage has, for a period of not less than one year, failed to comply with a decree or restitution of conjugal rights made under the Act

Conjugal rights are rights and privileges that typically pertain to marriages. Sexual intercourse, maintenance, etc are examples. A decree for restitution of conjugal right is an order made by the court requiring a party to comply with such rights, privileges, or obligations.

8. That the other party to the marriage has been absent from the petitioner for such time and in such circumstances as to provide reasonable grounds for presuming that he or she is dead.

Where the respondent has not been seen for seven years, he/she could be presumed dead and the marriage would be dissolved by the court.

Conclusion on the grounds for divorce in Nigeria

The above grounds for divorce in Nigeria could be combined where one or more grounds have occured in a marriage. For instance where a spouse who frequently abuses his/her spouse has also committed adultery, grounds 2 and 3 above may be presented in the petition.

The above explanation of grounds for divorce in Nigeria are intended to be used as a reference only. If you are a respondent in a divorce proceeding or you want to file a divorce petition, it is advisable to consult a lawyer for professional advice. This is because statutes, like the Matrimonial Causes Act, are usually interpreted with cases and lawyers usually have thorough knowledge of case law.

How to Change Your Legal Name in Nigeria

How to change your name under Nigerian law
How to change your legal name in Nigeria
How to Change Your Legal Name in Nigeria

Have you ever wanted to change your legal name in Nigeria? Perhaps you heard a name that resonates deeply with you or probably you attained a new position in life and you are of the opinion that it is proper to accompany such with a name change or maybe for some other reasons that have nothing to do with these mentioned. Regardless of what your reasons are, Nigerian law permits people to change their name as they deem fit, although there are restrictions. In this post, I will explain how to change your legal name in Nigeria.

What is your legal name?

Your legal name is the name by which you are officially known. This is usually the name on your birth certificate or the name by which you are registered on official government records. So if you are are changing your nickname by which you are known by friends for instance, this post probably isn’t necessary for you.

Let’s look at popular reasons why people change their legal names in Nigeria:

1. People may change their legal names because of marriage

In Nigeria, marriage is a popular reason why people change their legal names. It is customary that when a woman gets married she adopts her husband’s surname as hers. However, nowadays it is becoming common for a woman to retain her maiden name (surname) whilst adopting her husband’s name thereby forming a compound surname. For example, if her maiden is “Mark” and her husband’s surname is “Richard”, she can choose to bear “Mark-Richard”.

2. They simply dislike their previous name

Some people simply do not like their given birth names. Perhaps the birth name is too indigenous for their liking or they just want to dissociate themselves from their families. For instance, it is a popular practice in Nigeria for people to change their legal names when such names are known to be notorious as it is believed that bearing such names might bring ill luck.

3. You can change your legal name as a result of divorce

Where a woman adopted her husband’s name upon marriage, she can choose to reclaim her maiden name after obtaining a divorce from the court.

4. Children changing from father’s name to mother’s name

A child might choose to switch from bearing his father’s surname to bearing his mother’s surname or vice-versa. This is mostly common in situations of absent fathers or mothers.

5. For religious purpose

People sometimes change their legal names in Nigeria after changing religion
People sometimes change their legal names in Nigeria after converting to a new religion

A change of name is sometimes considered in Nigeria after conversion to a new religion. Many Christians upon baptism adopt new names.

6. As a form of statement

Some people change their legal names as a form of a statement.

Below is a step by step guide on how to change your legal name in Nigeria

The Procedure for changing one’s legal name is relatively easy and straight-forward.

1. Swear to an affidavit changing the legal name

The first step in changing your legal name is deposing to an affidavit changing your name to the desired name. An affidavit is simply a written statement made under oath that is sworn to before an authorized officer of the court usually the Commissioner of Oath. The affidavit should state what your previous name was and the new name you intend to bear. It should also include reasons for the change of name. You should attach your passport photograph to the sworn affidavit.

2. Publish a notice of legal change on a national newspaper

After swearing to an affidavit, the next the thing you are to do is to make a publication on a national newspaper notifying the general public of the change of name. This is usually done by making payment for the advert space that would be used for the notice and submitting the requested documents showing the change of the name. Contact your national newspaper to know the specific cost for a change of legal name.

When these have been done, it is important that you notify all relevant persons of the change of name. For example, your employer, your bankers, tax officials and all relevant government agencies. This is to enable them update their records with your new legal name.

When a change of legal name will not be permitted

Although Nigerian law generally allows people to change their legal names, below are instances where you are not permitted to change your legal name.

  1. Where the purpose of the name change is to avoid debts owed or criminal liability.
  2. Where the change of name is done for the purpose of committing a crime. In such instance, the name change will be invalid.
  3. Any person under who is under 18 years of age cannot legally change their names without the consent of their parents or guardian as the case may be.
  4. Finally, the law does not permit a change of name where the name change is intended to harass, intimidate or considered offensive/ racist.

Traditional vs Statutory Marriage in Nigeria

Traditional Vs. Statutory Marriage in Nigeria: 5 Things You Must Know

What is marriage in Nigeria?

Marriage is simply the union between a man and a woman to become husband and wife. Nigeria has a plural legal system. As a result, traditional marriage and statutory marriage are both recognised by law. Both forms of union are quite common in Nigeria. If you are planning to get married, there are things you must know about traditional and statutory marriage.

Traditional Marriage vs Statutory Marriage in Nigeria

What is traditional marriage?

Traditional vs Statutory Marriage in Nigeria
Traditional marriage

Traditional marriage is usually performed according to the customs or culture of a particular ethnic group. Nigeria has many ethnic groups. This is why we also have diverse customary laws. Most traditional marriages in Nigeria have similar characteristics to a large extent. Yet still, few things might be different in various customs.

According to Yoruba laws and customs for instance, a man is allowed to marry more than one woman. This polygamous nature of Yoruba Traditional Marriage exists in many other ethnic groups as well.

What is statutory marriage?

Statutory marriage in Nigeria

Statutory marriage sometimes referred to as court marriage or registry marriage in Nigeria is regulated by statutory law.

There are two principal statutes that regulate statutory marriage in Nigeria. These statutes are the Marriage Act and the Matrimonial Causes Act.

Statutory marriage is monogamous marriage. This means the spouses cannot marry more than one person during the validity of the marriage. If either of the party wants to marry another person, they must end their current marriage first by divorce.

Characteristics of traditional marriage and statutory marriage

Age requirement

There is usually no age requirement in customary marriage in Nigeria. However, though it occurs in some places, minority marriage is not very common in Nigeria.

Couples aged 21 years or older can marry without parent’s consent under statutory law. Someone under the age of 21 years could get married under statutory law but such person must obtain parent’s consent first. The consent could be obtained from the father or mother depending on particular circumstances under the Marriage Act.

Dowry

Dowry is very important in traditional marriage. A dowry is usually a form of money or other types of property that is given to the parents of the bride.

There is no such thing as dowry in statutory marriage on the other hand.

Customary and traditional marriage ceremony in Nigeria

Customary and traditional marriage ceremony in Nigeria

Traditional marriage usually involves a wedding ceremony where the couples are united. The marriage ceremony usually takes place at the bride’s family residence. Family members of both couples are usually present at the ceremony. Traditional marriage ceremony usually goes along with celebration and it could take quite long.

Ceremony in statutory marriage could take place at the Court, registry, or a licensed place of worship1See section 6(1) of the Marriage Act 1914. (e.g. church). Details of the marriage will then be entered in the marriage registry.

Marriage ceremonies at the Court or registry usually take less time in comparison to traditional wedding ceremonies. However, it is quite common for parties to conduct a lengthy celebration at designated places thereafter.

Demise (death) of a spouse

If one of the spouses in a customary marriage dies without leaving a will, their estate will be administered under customary law. It could be difficult to decide the relevant customary law in some cases. This is because of the diversity of customary laws as mentioned earlier.

For instance, couples might get married in a particular place and then relocate elsewhere to live their lives. The question could then arise as to which customary law would apply. Would it be the customary law of the place where the deceased got married or the one where they lived?

On the other hand, a deceased spouse’s estate would be administered under statutory law if the couples were married under statutory law. Determination of relevant law is not usually a problem because of the uniformity of statutory law.

Dissolution of traditional marriage and statutory marriage (divorce) in Nigeria

Dissolution of traditional marriage and statutory marriage (divorce) in Nigeria

Customary marriage can be dissolved at the Customary courts. It is worth knowing that lawyers do not have a right of audience in the customary courts. This means that a lawyer may not be able to represent a party in a divorce proceeding in the customary courts. Parties usually represent themselves in the customary court.

Statutory marriage on the other hand can be dissolved at the High Court and parties may be represented by lawyers.

Conclusion

Customary marriage and statutory marriage are both recognised by law in Nigeria. They both have advantages and disadvantages. If you are planning to get married, it is worth considering the characteristics of both.

If you need to discuss a legal issue with a lawyer, you can book an online consultation (video meeting) through the form below:

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References

  • 1
    See section 6(1) of the Marriage Act 1914.