ANNULMENT OF MARRIAGE UNDER THE NIGERIAN LAW

ANNULMENT OF MARRIAGE UNDER THE NIGERIAN LAW

An annulment of marriage is a procedure used in Nigeria where a party to a Statutory marriage tries to entirely void the union on the grounds that it is void or voidable in compliance with the laws, notably the Marriage Act and the Matrimonial Causes Act.

In the case of a void marriage, the court's ruling is not necessary to dissolve the union because the parties were never legally considered husband and wife in the first place. However, a decision that just states the fact that there has never been a marriage may be obtained in regard to a void marriage to put any remaining uncertainty to rest.

The distinction between void and voidable Marriages was stated by Lord Green in the case of De Reneville V.De Reneville (1949) Page 100,111 (C.A.) thus:

"A void marriage is one that will be regarded by every court in any case in which the existence of the marriage is in issue as never having taken place and can be so treated by both parties to it without the necessity of any Decree annulling it; A voidable marriage is one that will be regarded by every court as a valid subsisting marriage until a Decree annulling it has been pronounced by a Court of competent jurisdiction."

The annulment of marriage in Nigeria may be asserted by any person but where the marriage is voidable only one of the spouses can do so because until it is annulled the marriage is valid.

The principal law governing the matrimonial matters in Nigeria is the Matrimonial Causes Act, 1978 (the Act). The annulment of marriage is completely different from a divorce. Some of the distinctions between an annulment of marriage and dissolution of marriage will be briefly highlighted below:

GROUNDS UPON WHICH A PETITION FOR DECREE OF NULLITY OF VOID MARRIAGE CAN BE FILED

Section 3 of the Act provides that a marriage may be deemed void on any of the following grounds:

Existing Lawful Marriage: where either party to a statutory marriage is at the time of the marriage lawfully married (customarily or statutorily) to another person such marriage will be void. Therefore, where any lawful marriage precedes the present statutory marriage, the present one is void ab initio. This is further supported by section 33(1) of the Act which states that “No marriage in Nigeria shall be valid where either of the parties thereto at the time of the celebration of such marriage is married by native law or custom to any person other than the person with whom such marriage is had.”

Section 35 of the Marriage Act further prohibits such and Section 39 states that any person who contracts such a marriage to another whom he/she knows to be married to another is liable to imprisonment for 5 (five) years.

PROHIBITED DEGREES OF CONSANGUINITY OR AFFINITY:

This refers to persons who are related by blood (consanguinity) or related through marriage (affinity). A marriage contracted by such persons is deemed void in Nigeria.

The First Schedule to the Act in terms of prohibited degrees of consanguinity and affinity for a man include: his ancestress, descendant, sister, Maternal and Paternal aunt, Niece, Mother-in-Law, Wife’s Grandmother, Wife’s daughter, Wife’s son’s daughter, Wife’s Daughter’s daughter, Father’s wife, Grandfather’s wife, Son’s wife, Son’s son’s wife and daughter’s son’s wife. For a woman, it includes: her ancestor, descendant, brother, Maternal and Paternal Uncle, Nephew, Father-in-Law, Husband’s Grandfather, Husband’s son, Husband’s son’s son, Husband’s Daughter’s son, Mother’s husband, Grandmother’s husband, Daughter’s husband, Son’s daughter’s husband and daughter’s daughter’s wife

INVALIDITY BY THE LEX LOCI CELEBRATIONIS(LAW OF THE PLACE OF CELEBRATION:

A marriage is regarded as void where the parties fail to comply with the form prescribed by the law of the place where it was contracted as regards the solemnization of marriage. I had earlier stated that for a marriage to be valid in Nigeria it must comply with certain requirements set out in Section 21 of the Marriage Act. Section 33(2) of the Marriage Act 1914 further states that a marriage is void where both parties to a marriage knowingly and wilfully take part in marriage under any of the following circumstances:

In any place other than the office of a registrar or a licensed place of worship Without a special license granted by the Minister authorising such marriage between named persons by the registrar or a recognised minister of some religious denomination or body in accordance with Section 13 of the Marriage Act. Celebration under false name(s) Celebration without a Registrar’s Notice Celebration by a person not being a recognised minister of a religious denomination or body or by a registrar of marriage.

LACK OF CONSENT:

the marriage in this instance is void where either of the party’s “consent” was obtained on the basis of: Duress or fraud. Duress in the sense that the consent was obtained through compulsion or by creating a state of fear or apprehension in either of the parties and fraud where certain facts were misrepresented by a party to the marriage to obtain the consent of the other. This occurs where a party is mistaken as to the identity of the other party or the nature of the marriage performed. A marriage is void where consent was obtained from a party incapable of understanding the nature of the marriage.

MARRIAGEABLE AGE:

When one or both of the parties entered into the marriage before reaching the legal marriageable age, the marriage is void. The Child Rights Act and the Child Rights Law of States specify that an 18-year-old is an adult and thus of marriageable age, despite the fact that the Act does not specify a marriageable age.

NB: This article is not a legal advice, and under no circumstance should you take it as such. All information provided are for general purpose only. For information, please contact chamanlawfirm@gmail.com

WRITTEN BY CHAMAN LAW FIRM TEAM

EMAIL: chamanlawfirm@gmail.com

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