UNIT 23 - NULLITY AND RECTIFICATION OF CUSTOMARY LAW MARRIAGE

TOPIC OF THE DAY

- NULLITY OF CUSTOMARY LAW MARRIAGE

- RECTIFICATION OF CUSTOMARY LAW MARRIAGE

- GROUNDS ON WHICH A CUSTOMARY LAW MARRIAGE IS VOID

- GROUNDS ON WHICH A CUSTOMARY LAW MARRIAGE IS VOIDABLE

Nullity of Customary Law Marriage

A customary law marriage in Nigeria can be declared null and void under specific circumstances. This means that the marriage is considered to have never existed legally. 

Rectification of Customary Law Marriage

Rectification refers to correcting defects in the marriage procedure or documentation. If a customary law marriage is found to have procedural defects but the essential requirements are met, rectification may be sought. This usually involves performing omitted customary rites or correcting errors in the marriage documentation. Rectification does not apply if the marriage is void ab initio.

Grounds on which a Customary Law Marriage is Void

A void marriage is one that is invalid from the outset. Under Nigerian customary law, the following are grounds on which a customary law marriage can be declared void:

1.Prohibited Degrees of Consanguinity and Affinity: This is where marriages within certain familial relationships are prohibited. For instance, marriage between siblings, half-siblings, or close cousins is not allowed. See the case of Okpanum v. Okpanum (1972) 1 All NLR 248.

2.Existing Marriage: This happens if either party is already married under statutory law or another subsisting customary law marriage, the subsequent marriage is void. See section 35(1) of the Marriage Act.

3.Lack of Consent: This is where both parties must voluntarily consent to the marriage. A marriage contracted without the free consent of both parties is void. See the case of Osayi v. Osayi (2014) LPELR-24377(CA).

4.Non-Observance of Customary Rites: This is where the customary rites and formalities specific to the community must be observed. Failure to perform essential rites can render the marriage void. See the case of Fumudoh v. Aboro (1991) 9 NWLR (Pt. 214) 210.

5.Impediments to Marriage: This is where certain impediments, such as mental incapacity or extreme youth, can make a marriage void if the individual lacks the capacity to understand the nature of the marriage contract.

Grounds on which a Customary Law Marriage is Voidable

A voidable marriage is one that is valid until it is annulled by a court. The marriage remains valid until a decree of nullity is obtained. Grounds for a customary law marriage to be declared voidable include:

1.Lack of Capacity: This happens if one party was incapable of consummating the marriage due to physical or mental incapacity, the marriage can be voidable. See the case of Obiekwe v. Obiekwe (2012) LPELR-7990(CA).

2.Duress or Fraud: This happens if consent was obtained through duress or fraudulent means, the marriage can be voidable. See the case of Adebayo v. Adebayo (2007) LPELR-8503(CA).

3.Pregnancy by Another Man: This happens if the wife was pregnant by another man at the time of the marriage, the husband may seek to annul the marriage. See the case of Nwankwo v. Nwankwo (2014) LPELR-24365(CA).

4.Impotence: This happens if one party was impotent at the time of marriage and remains so, the marriage can be voidable. See the case of Adesubokan v. Yinusa (1971) 1 All NLR 225.