Introduction
Discovering that your marriage is void can be devastating, especially after years of believing it was valid. Unlike valid marriages, void marriages lack legal recognition and offer none of the legal rights and protection enjoyed by couples. Knowing the factors that make a marriage void is essential to avoiding this painful reality.
In this article, we will be explaining the concept of void marriage in Nigeria, the legal grounds for void marriage, when to file a petition for annulment of a void marriage and who can file the petition for the annulment.
What is a Void Marriage?
A void marriage is one where, despite undergoing a marriage ceremony, the parties are not legally recognised as spouses and do not acquire the rights and status of husband and wife. Unlike a “voidable” marriage, which is valid until set aside by a court, a void marriage is legally non-existent as if it never took place. That is, void ab initio.
A decree of nullity for a void marriage declares the existing legal fact that no valid marriage ever occurred. It’s not dissolving a marriage but rather confirming the fundamental invalidity of such a marriage.
Grounds for Void Marriage in Nigeria
Section 3 of the Matrimonial Causes Act provides the circumstances under which a marriage may be declared void.
- Bigamy: Where either of the parties to the marriage is, at the time of its celebration, lawfully married to some other person and that marriage was still subsisting, such subsequent marriage will be null and void.
A valid statutory marriage under the Marriage Act requires that both parties be single at the time of the marriage. So, if either of the party was previously married and the marriage was not dissolved, the new marriage will be declared void.
- Prohibited Degrees of Consanguinity or Affinity: Any statutory marriage celebrated in Nigeria by parties who are within the prohibited degrees of consanguinity or affinity will be void.
Consanguinity relates to blood relationship, while affinity refers to persons related through marriage. It should be noted that, in certain circumstances, it may be possible for persons within the prohibited degree of affinity to marry each other, though, with the consent of a High Court Judge.
- Non-Compliance with Marriage Laws: A marriage may be declared void if such marriage was not celebrated in accordance with the formal requirements of the law of the place where the marriage was celebrated.
This includes essential elements like celebrating in a place other than the Registrar’s Office or a licensed place of worship, celebration of the marriage under a false name or names, celebration without a certificate or a special licence, and marriage not celebrated by a minister of religion or a registrar of marriage.
- Lack of Consent: Absence of consent will invalidate the marriage. Where a party has not given consent before the celebration of the marriage, the marriage will be void ab initio.
Also, the marriage will be void if the consent of either party was obtained through fraud, duress, or mistake; one of the parties was suffering from a mental disorder or intellectual disability to such an extent as to be unfitted for marriage; or one of the parties was mistaken as to the identity of the other party or as to the nature of the ceremony performed.
- One Party Not of Marriageable Age: The parties must be of marriageable age for the marriage to be valid. While the Marriage Act does not specify an age, the Child Rights Act sets the minimum age for marriage at 18 years. If either party is underage, the marriage is void.
When to File a Petition for Annulment of Void Marriage
Since a void marriage is deemed non-existent in the eyes of the law, no court order is necessary to annul it. Nevertheless, parties can still approach a high court to formally declare the marriage void, and this can be done at any time, including after one party’s passing.
Who Can File for Annulment of a Void Marriage?
Generally, a petition for a declaration of nullity of a void marriage can be filed by either party to the purported marriage or any interested third party. The third party may be a person who is already legally married to one of the parties in the purported void marriage or the Attorney-General (in limited circumstances).
Case Study
Mr Emeka Okafor, a well-known businessman, had a formal statutory marriage with Mrs Ngozi Okafor in Lagos State in 2005. They built a life together, had three children, and owned many properties. What Ngozi didn’t know was that Emeka had previously, in 1995, entered into a valid customary marriage with Ms Aisha Bello in Kano State, and that marriage was still active. Emeka and Aisha also had two children from their customary union.
Years later, during a family dispute about inheritance after Emeka’s death, Aisha came forward and claimed her rights as Emeka’s first wife, showing proof of their customary marriage. Ngozi was heartbroken and sought legal advice.
What the Law Said
Ngozi’s lawyers quickly told her that her marriage to Emeka was “void from the beginning” (void ab initio). This was because Emeka had committed bigamy, which means being married to two people at the same time. This directly broke Section 3(1)(a) of the Matrimonial Causes Act. This law clearly states that a marriage is void if one of the people was already legally married to someone else when they got married again. The fact that Aisha’s marriage was customary didn’t make it less valid under Nigerian law, and it happened before the marriage to Ngozi.
While Ngozi and her children faced huge emotional pain, the legal truth was that her marriage to Emeka was never valid. If she went to court, the court would issue a “decree of nullity”, not a divorce. This decree would simply state that the marriage between Emeka and Ngozi never legally existed.
Conclusion
A void marriage lacks legal recognition and offers none of the legal rights and protection enjoyed by couples. It is important to understand the legal grounds for a void marriage
Written by:
SALAWA ABIKE SULE-AZEEZ
Legal Practitioner
08104746175, 09051587201
Source: BarristerNG
