The Concept Of Void And Voidable Marriages In Nigeria (1)

By Dave Ajetomobi

There are various matrimonial reliefs available under the Matrimonial Causes Act (hereinafter referred to as the Act) of 1978 for persons in a statutory marriage. One such is the annulment of marriage, which in Section 114 of the Act is referred to as “Nullity of Marriage”. An application for nullity of marriage can be invoked where the marriage contracted by 2 persons is void or voidable. In this article, we will discuss what constitutes a void or voidable marriage, the grounds upon which each can be sought to be nullified, and how to commence an action in Court in that regard.

Before we proceed, it is pertinent to note that although all marriages, whether statutory, customary, or Islamic, are recognized in Nigeria as valid, for a statutory marriage to be considered valid in Nigeria, it must be conducted or contracted according to Section 21 of the Marriage Act at a licensed place of worship for that purpose. This license is given by the minister, or the place of worship may have been previously licensed by another enactment, whether or not it has been repealed. By a recognized minister of the church, denomination, or body to which such place of worship belongs according to the rites or usages of marriage observed in such church, denomination, or body.

What is a void and voidable marriage?

The English court’s decision in the case of De Reneville v. De Reneville per Lord Green, which was also restated in the Nigerian case of Mbonu v. Mbonu, is appropriate in this circumstance. Therein, it was clearly stated that:

“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.”

Therefore, going by this pronouncement it can be said that a void marriage is one that is invalid ab initio. From its inception, it never existed due to certain prior existing circumstances or failure to adhere to certain prescribed requirements while the marriage was being contracted.

On the other hand, a voidable marriage is valid for all intents and purposes but can be nullified by a party to the marriage due to certain circumstances that that such a party was not privy to at the time the marriage was contracted.

Grounds upon which a petition for a decree of nullity or void marriage can be filed:

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

1. 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.

1. 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.

By Section 4 of the Act, such marriage is only void if the parties do not apply to a judge for permission to contract such a marriage, and the judge consequently grants the same, having been satisfied that exceptional circumstances warrant the grant of the permission.

However, the position has changed in Europe following a recent change in the law by the European Court of Human Rights. A person can now marry his or her child’s former spouse or his or her parents former spouse; either party is under the age of 16; or the parties have intermarried in disregard for certain requirements as to the formation of a marriage.

3 Invalidity by The Lex Loci Celebration is (Law Of The Place Of Celebration) A marriage is regarded as void if the parties fail to comply with the form prescribed by the law of the place where it was contracted as regards the solemnization of the marriage.

In Nigeria, for a marriage to be valid, 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 it knowingly and wilfully take part in it under any of the following circumstances:

1. 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 (church or mosque) or body in accordance with Section 13 of the Marriage Act.

2. 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.

It is noteworthy, that it must be proved that both parties contracted the marriage in full knowledge of any of the circumstances mentioned above. See the case of  Anyeagbunam v. Anyeagbunam.

b. Lack of Consent: the marriage in this instance is void where either 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 when a party is mistaken as to the identity of the other party or the nature of the marriage performed.

A marriage is void if consent was obtained from a party incapable of understanding the nature of the marriage.

1. Marriageable Age: A marriage is void where either of the parties contracted the marriage at an age not regarded as marriageable by the law. Although the Act does not prescribe marriageable age, the

Child Rights Act and the Child Rights Law of States state that an 18-year-old is an adult and thus of marriageable age.

A marriage contracted under any of the grounds mentioned above is void ab initio, as it never existed, nor it is recognized by the law. A decree nullifying a non-existent marriage is thus not necessary. However, to clear any assumptions created by virtue of the parties’ relationship or actions that connote the existence of a marriage, a decree nullifying same may be obtained in that regard. Also, parties, upon realizing any of the errors above that can be remedied by a subsequent valid marriage, may proceed to do so.

Grounds Upon Which A Petition for Decree of Nullity of Voidable Marriage can be Filed

A voidable marriage, unlike a void marriage, is valid and only becomes void at the instance of one of the parties to the marriage. The marriage is valid for all intents and purposes in the eyes of the law (having complied with the prescribed form and also not being contracted under any of the grounds that would render it void ab initio), until and unless a party to the marriage decides to render the same void.

A marriage is voidable at the instance of one of the parties to the marriage on the basis of any of the conditions stated in Section 5 of the Marriage Act:

Incapacity to Consummate the Marriage: where either party to the marriage is incapable of consummating it, the marriage is voidable at the instance of the party capable of consummating the marriage.

It should be noted that the incapacity to consummate must be specific. If it is sterility, that is, where the party cannot procreate ( for a man, he cannot impregnate the wife), this does not amount to incapacity, nor does the use of contraceptives or withdrawal methods amount to incapacity. This is the decision in the English case of Baxter v. Baxter.

The lack of capacity to consummate must exist at the time of the marriage and during the hearing of the petition. Moreover, Section 36 of the Act states that a decree of nullity cannot be made on this ground until the court is satisfied that, at the time of hearing of the petition: the incapacity is not curable, or the respondent refused to submit for a medical examination to determine whether it is curable or not, and/or the respondent refused to submit for proper treatment if the incapacity is curable.

It is noteworthy that by the provision of Section 35 of the Act, a party suffering from the incapacity to consummate cannot file a petition in this regard unless he or she is not aware of the incapacity at the time of the marriage.

Similarly, Section 36(2) of the Act also provides that the decree shall not be made if the petitioner is aware of the incapacity at the time of the marriage or if, by the conduct of the petitioner, he or she has condoned it, or if there is time to complain of a lapse of time, public interest, where it would be harsh and oppressive to the respondent, or for any other reason.

It is noteworthy, that the party must be incapable of consummating the marriage and is not wilfully and persistently refusing to do the same, which is grounds for the dissolution of the marriage.

Unsound Mind, Mental Disorder/ instability and Regular Attacks of Insanity or Epilepsy: where either party suffers from any of these, a decree can be sought to nullify the marriage. The insanity need not be total, it can also be in the form of an inability to understand easily. Section 5(2) of the Act defines a mentally defective person as one owing to an arrest or incomplete development of mind due to an inherent cause induced by disease or injury that requires oversight, thus making the party unfit for the responsibilities of marriage.

Section 37 of the Act states that for a petitioner to file a petition under this ground, he/she must be ignorant of the fact at the time of the marriage, must have filed a petition for decree of nullity not later than 12 (twelve) months after the date of the marriage and sexual intercourse must not have occurred after discovering the fact relied on.

Venereal Disease: A marriage is voidable where either party is suffering from a contagious form of venereal disease. This ailment must have existed at the time of the marriage. Such diseases include HIV, Hepatitis B, etc. The disease can be established in court by calling medical evidence.

By the provision of section 38 of the Act, a decree of nullity of a voidable marriage has the effect of annulling the marriage from and including the date on which the decree becomes absolute, but it does not render illegitimate a child of the parties born since or legitimated during the marriage.

A petition for a decree of nullity of marriage is to be filed in accordance with Form 6 provided for in the Matrimonial Causes Rules, wherein details of the petitioner and respondent, their marriage, children, grounds for the petition, and any other evidence or witnesses that can be used to prove the existence of facts relied on. The action can be commenced at any State High Court

It should be noted that only statutory marriages (i.e. marriages under the Marriage Act) are entitled to any of the matrimonial reliefs under the Matrimonial Causes Act. However, they must comply with the prescribed form provided by the law.

Interestingly, an interested party may bring a petition for a decree of nullity of a void marriage upon the death of either party, but in a voidable marriage, such cannot be filed as it remains valid till the death, it does not deprive the surviving party of any rights he/she may have under the law vis-à-vis the marriage.

To be continued

Source: @Thenigerialawyer