Nigerian Law Forum
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.
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 that traditional marriage and statutory marriage 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.
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,Agbeja 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,Agbeja 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:
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.To 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. 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.
For more on the distinction between traditional marriage and statutory marriage, see the post titled Traditional vs Statutory Marriage in Nigeria.
Michael Akerele, LLB, MICL, BL
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