Marriage Act Hasn’t Been Amended -CLASFON President
Recently, the Federal Government released a long list of conditions for the issuance of new marriage certificates and licensing of places of worship. These conditions include among others, the cost of the new marriage certificate, existing couples whose certificates were not issued by the Federal Ministry of Interior should visit the ministry’s website to re-certify them. These lengthy conditions have raised a lot of dust that is yet to settle. In this exclusive interview, Barrister Arome Okwori, National President, Christian Lawyers Fellowship of Nigeria (CLASFON) bares his mind on the new marriage certificate controversy and other sundry issues related to marriage under the law.
What are the types of marriages we have in Nigeria?
Basically, there are three categories of marriages that are recognized under the law in Nigeria. We have the Statutory Marriage, which is the marriage under the Marriage Act, that is CAP M6 Laws of the Federation of Nigeria 2004. Then we have the Islamic Law Marriage and then the Customary Law Marriage. You will note that I didn’t mentioned Christian Marriage…
Christian Marriage falls under the category of the Customary Law Marriage. So, a marriage that is conducted in the Church which is not conducted under or pursuant to the Marriage Act is considered by law to be a Customary law marriage. Now, in each of these marriages, the spouses’ conduct will determine the rights and obligations that will be attached to them. So, those are the three basic categories. So, Christian marriage falls under the umbrella of Customary Law Marriage.
Give us a brief background of Statutory Marriage in Nigeria?
Permit me to say that, before the British colonialists came to Nigeria, we as Nigerians were living in our communities and conducting our social affairs as determined by our own culture, rights and traditions that were regulated by our cultures. Now, you find that when the colonialists came, what emerged was that they came with the English legal system which we know as the received English law. Okay, that is very important. And, specifically with regards to marriage, the British came with their own system of marriage which was defined long ago in the case of Hyde and Hyde which was decided in 1860. Statutory Marriage was defined by the court; (Lord Penzans) as a voluntary union between a man and a woman to the exclusion of all others. So, that English system of marriage was basically entrenched in Biblical doctrine (one man, one wife) and no other. So, when they came, that philosophy of marriage was introduced and, of course, that philosophy of marriage was also legalized. As way back 1914, the Marriage Act was first legalized in Nigeria. And I am sure you are familiar with 1914.
Ordinance No. 18 of 1914 was the first Marriage Ordinance. From 1914, there was another Marriage Ordinance No. 18 of 1916, No. 23 of 1922, No. 58 of 1933, No. 1 of 1958, No. 131 of 1954 and No. 1 of 1955. So, there has been a sequence of marriage ordinances which is what we call the Statutory Law Marriage. The Marriage Act has gone through one or two reformations over time. But substantially, it has been there over time through the time of independence till today as a Federal legislation. I want to say that, even today, if you look at the current 1999 Constitution, Section 4(1)(2) of the 1999 Constitution makes provision for or has given the National Assembly powers to make certain laws. And all those aspects of law-making in which powers were vested in the National Assembly were itemized under the Exclusive Legislative list that is made pursuant to the 1999 Constitution. Those legislative powers are very clear. And specifically, item 61 of the Constitution is very clear: the formation, annulment and dissolution of marriages other than marriages under Islamic law and Customary law including matrimonial courses relating thereto.
So, you can see that even from this section, no mention was made of Christian Marriage. It talks only of Islamic law marriage and customary law marriage. The confusion has always been that if somebody as a Christian goes to church and he conducts a marriage in the church, people may want to assume that that kind of marriage, because the church was a big church or because the minister was a big minister, is marriage under the Act. What we are saying is that that kind of marriage is a marriage that was done to receive a church blessing, if it was not done in compliance with the provisions of the Marriage Act, CAP M6 Laws of the Federation of Nigeria 2004. As far as the law is concerned, that marriage is just a church blessing. Over the past seventy years, these issues have been coming up. In fact, the Catholic Church refused to comply with the provisions of the Marriage Act in the conduct of their marriages. And so, you have a long line of cases where the Supreme Court has decided that, well, if you decide to go and do your own marriage in your church outside the Marriage Act, you are on your own. So, there are such cases like Anyegbunam against Anyegbunam where the Supreme Court clearly decided that, look if you do a marriage in the church outside the Marriage Act, that marriage is a Customary Law Marriage. And even in a more recent case of Moto against Moto, this was the decision of the Court of Appeal, Aboki JCA in 2011. He held that so far as the Nigerian law is concerned, there is only one form of monogamous marriage and that is Marriage under the Ordinances (marriage under the Act). Legally, a marriage in a church of any denomination is either a Marriage under the Act or it is nothing.
So, if you are getting married in the Church and that marriage is not done in compliance with the provisions of the Marriage Act, as far as the law is concerned, that marriage is a Customary Law Marriage. Now, how is it possible to have marriage in the church which can also become Marriage under the Act? It is very simple. The Marriage Act makes a provision for a church to apply to the Minister of Internal Affairs to get a license to enable that church to be able to conduct marriages within the four corners of that church and also to license specific ministers within the church to conduct statutory law marriages. So, in that case now, if a church is going for that, you will now have to comply with some of the basic regulations and requirements for conducting statutory marriages inside the church. So, in as much as the Church marriage is a blessing, the legal implications of Statutory marriage is also being bestowed simultaneously. So, the couple will not have to say that after marrying inside the church, they will go to the local government registry or to the marriage registry to conduct another marriage. That is something that could have been done.
There are some churches that have recognized that. They have applied for licenses which the minister issued and approved some places of worship, approved some ministers. So, when such marriages are conducted, of course the usual notice will be given by the church as required under the Marriage Act. The required witnesses will be made to sign pursuant to the provisions of the Marriage Act, the required ceremonies required under the Marriage Act will also be done. And then, after the marriage, the certificate will also be domiciled in the Registry of Marriage with the official government number for such statutory marriage there. So, in such a case, you now find that though the marriage has taken place in the Church with all the Church’s blessings, at the same time there has been a marriage under the Act. But if there is no such license and there is no compliance with that kind of procedure, any other thing that is done as far as the law is concerned is either a statutory law marriage or it is nothing.
Read the details of this interview in the December 2019 edition of Today’s Challenge Magazine