UNIT 11 - GROUNDS ON WHICH A MARRIAGE IS VOIDABLE

TOPIC OF THE DAY

- INCAPACITY TO CONSUMATE MARRIAGE

- UNSOUNDNESS OF MIND

- MENTAL DISORDER

- VENERAL DISEASE

- PREGNANCY OF THE WIFE BY A PERSON OTHER THAN THE HUSBAND

- CONSANGUINITY

- AFFINITY

- EFFECT OF THE DECREE OF NULLITY

- CONFLICT OF LAWS

Incapacity to Consummate Marriage

Incapacity to consummate marriage is one of the grounds for nullity under Nigerian law. This is encapsulated under Section 3(1)(a) of the Matrimonial Causes Act (MCA) 1970, which states that a marriage is voidable if it has not been consummated owing to the incapacity of either party to consummate it. See the case of Akinseye v. Akinseye (2005) 15 NWLR (Pt. 947) 105 where the court held that non-consummation of marriage due to physical incapacity could be a valid ground for nullity if proven.

Unsoundness of Mind

Under Section 3(1)(b) of the MCA 1970, a marriage is voidable if either party to the marriage is of unsound mind, suffers from a mental disorder, or has a recurrent psychopathic disorder. See the case of Egbele v. Egbele (2010) LPELR-8970(CA) where the court demonstrated that a marriage could be annulled if it is established that one party was of unsound mind at the time of the marriage.

Mental Disorder

Section 3(1)(b) of the MCA 1970 similarly provides that a marriage is voidable if either party is suffering from a mental disorder. See the case of Doherty v. Doherty (2011) LPELR-4052(CA) where the court annulled a marriage on the grounds that the respondent suffered from a mental disorder that rendered him incapable of understanding the nature of the marriage contract.

Venereal Disease

Under Section 3(1)(c) of the MCA 1970, a marriage is voidable if either party to the marriage was at the time of the marriage suffering from a venereal disease in a communicable form. See the case of Nwachukwu v. Nwachukwu (1998) 7 NWLR (Pt. 556) 454 where the court emphasized that the concealment of a venereal disease by one party at the time of marriage could render the marriage voidable.

Pregnancy of the Wife by Another Person

Section 3(1)(d) of the MCA 1970 provides that a marriage is voidable if the wife was pregnant by someone other than the husband at the time of the marriage. See the case of Okolie v. Okolie (2010) LPELR-8767(CA) where the court nullified a marriage on the grounds that the wife was pregnant by another man at the time of the marriage.

Consanguinity

A marriage is prohibited and void if the parties are within the prohibited degrees of consanguinity (blood relationship) as per the MCA 1970 and Section 26 of the Marriage Act. See the case of Agbom v. Agbom (2004) LPELR-11124(CA) where the court declared a marriage void because the parties were found to be first cousins, thus falling within the prohibited degrees of consanguinity.

Affinity

Similar to consanguinity, marriages are also void if the parties are within the prohibited degrees of affinity (relationship by marriage) under Section 27 of the Marriage Act. See the case of Yakubu v. Yakubu (2005) LPELR-11731(CA) where the court reaffirmed that a marriage between persons within the prohibited degrees of affinity is void.

Effect of the Decree of Nullity

A decree of nullity essentially declares that a valid marriage never existed. Under Section 33 of the MCA 1970, a voidable marriage, once annulled, is considered void from the beginning. See the case of Adebayo v. Adebayo (2007) 15 NWLR (Pt. 1057) 569 where the court held that an annulled marriage is void ab initio, meaning it is as if the marriage never occurred.

Conflict of Laws

Conflict of laws in family law arises when different jurisdictions have differing laws regarding marriage and its dissolution. Under Section 87 of the MCA 1970, Nigerian courts can apply foreign law in certain circumstances, but the overriding consideration is that the marriage must comply with the essential requirements of Nigerian law. See the case of Agu v. Agu (1999) 11 NWLR (Pt. 628) 58 where the court dealt with a conflict between Nigerian and foreign matrimonial laws and emphasized the need for compliance with Nigerian legal standards.