Marriage is a universal institution which is recognized and respected all over the world. As a social institution, marriage is founded on, and governed by laws, social and religious norms of society. Marriage under the act is a voluntary union between a man and a woman to the exclusion of others. The celebration of marriage under the act in Nigeria is regulated by the marriage Act, such marriage is usually referred to as statutory marriage.
ESSENTIAL VALIDITY OF MARRIAGE
The parties to a marriage under the act must posses the necessary capacity.
- NEITHER PARTY MUST BE ALREADY MARRIAGED
Marriage under the act is monogamous in nature, being a union of one man and one woman to the exclusion of others. Consequently, a party to a subsisting statutory or customary law marriage has no capacity to enter into another statutory marriage with another person.
- CONSENT OF THE PARTIES
The voluntary consent of the parties is a prerequisite for the celebration of a statutory marriage. The absence of such consent, or the granting of it under duress or misapprehension, vitiates the agreement.
- PARENTAL CONSENT
Where either parties to a statutory marriage, not being a widow or a widower, is under 21 years of age, he or she must obtain a written consent of the father. But if the father is dead or of unsound mind or absent from Nigeria, the mother may give the necessary consent. Where both parents are dead or are of unsound mind or out of Nigeria the guardian of the minor can give the consent.
- PROHIBITED DEGREE OF CONSANQUINITY AND AFFINITY
The parties to a statutory marriage must not be related by blood in any way. In other words, they must not be brothers or sisters or of any extended relation.
- SANITY
It is necessary that parties to a statutory marriage are sane. If one of the parties is insane and therefore mentally incapable of understanding the nature of the marriage contract the marriage is void ab initio.
- AGE
The marriage act did not lay down any mandatory age for marriage but section 3 (1) (e) of the matrimonial causes Act makes a marriage void where either of the parties is not of ‘Marriageable Age’ .But nowhere in the statute is the term marriageable age defined. In the absence of a statutory definition recourse may be made to the common law of England; part of the received English law in Nigeria. Under the common law, a valid marriage may be contracted if the parties have attained the age of puberty- fourteen years in the case of boys and twelve years for girls.
GROUNDS FOR DISSOLUTION OF MARRIAGE
The circumstances under which the court may make a decree for the dissolution of marriage are spelt out under section 15 (1) of the matrimonial causes Act. It states that the court may make a decree of dissolution on the ground that the marriage has broken down irretrievably. As to what amount to irretrievably break down of a marriage section 15 (2), provides that the court may hold that a marriage has broken down irretrievably if, but only if, the petitioner satisfy the court of one or more of the following facts:
- That the respondent has willfully and persistently refuses to consummate the marriage
- That since the marriage the respondent has committed adultery and the petitioner finds is it intolerable to live with the respondent.
- That since the marriage the respondent has behaved in such way that the petitioner cannot reasonably be expected to live with the respondent.
- That the respondent has deserted the petitioner for a continuous period of at least one year immediately preceding the presentation of the petition.
- That the parties to the marriage have live apart for a continuous period of at least two years immediately preceding the presentation of this petition.
- That the other party to the marriage has failed to comply with the decree of restitution of conjugal right made under the act.
- 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.
JUDICIAL SEPARATION
This is the forerunner of modern day divorce. It is a period where both parties are legally made to say apart for a period of time within which they may reconsider their stand. The grounds for a petition for judicial separation are provided for under section 39 of the matrimonial causes Act. Under the said section, one or more of the grounds for which a petition may be brought for dissolution of marriage under section 15 (2) and section 16 (1) of the Act, may constitute a ground for judicial separation.
THE EFFECTS OF JUDICIAL SEPARATION
As has been started earlier a decree of judicial separation only relieves the petitioner from the obligation to cohabit with the respondent while the marriage subsists. It does not affect the status, rights and obligations of the parties to the marriage. In other words, the marriage is valid and subsisting. Neither party to the marriage can remarry while the decree subsists. Either party to the marriage may sue the other in contract or in tort while the decree subsists.
Where maintenance is ordered as a consequence of the decree of judicial separation and the husband fails to pay he shall be liable to pay for necessaries supplied for the wife’s use.
A party to the marriage may institute proceedings for dissolution of the marriage during the pendency of the decree of judicial separation. Thus a decree of judicial separation does not act as a bar to subsequent proceedings for dissolution of marriage.
DISCHARGE OF THE DECREE OF JUDICAL SEPARATION
The court may discharge a decree of judicial separation if the parties voluntarily resume cohabitation, either on the application of the parties or on proof to the satisfaction of the court that the parties have voluntarily resume cohabitation. The decree of judicial separation is made with the hope that the parties may be reconciled in some future date.
It should be noted that since a decree of separation relieves the parties of the duty to cohabit, it follows that all the incidents flowing from consortium or cohabitation are also held in abeyance. Thus, a husband who has sexual intercourse with his wife, without the latter’s consent during the pendency of a degree of judicial separation, may be guilty of rape. He could also be guilty of assault on his wife especially if the decree contains a non-molestation clause.
Article Written By Evans Ufeli, A Lagos-based lawyer and writer.