UNIT 27 - VOID AND VOIDABLE STATUTORY MARRAIGE

TOPIC OF THE DAY

- DISTINCTION BETWEEN VOID AND VOIDABLE MARRIAGE

- VOID STATUTORY MARRIAGE

- GROUNDS WHICH RENDER A MARRIAGE VOID

- VOIDABLE STATUTORY MARRIAGE

- GROUNDS WHICH RENDER A MARRIAGE VOIDABLE

- STATUTORY BARS TO A PETITION FOR NULLITY OF VOIDABLE MARRIAGE

- EFFECT OF DECREES OF NULLITY IN RESPECT OF VOID AND VOIDABLE MARRIAGE

Distinction Between Void and Voidable Marriage

A void marriage is one that is considered null and void from its inception. This means it is regarded as never having taken place, and no legal consequences or obligations arise from it. Under Nigerian law, certain conditions automatically render a marriage void. These include the absence of the necessary legal formalities or the presence of certain prohibitive factors at the time of the marriage while voidable marriage, on the other hand, is a valid marriage until it is annulled by a court. Unlike a void marriage, it produces legal consequences and obligations until a decree of nullity is obtained. A voidable marriage can only be annulled on certain grounds, and it remains valid unless and until one of the parties seeks and obtains a decree of nullity.

Void Statutory Marriage

A void statutory marriage is one that fails to meet the essential legal requirements for a valid marriage under statutory law in Nigeria. Such marriages are considered null and void ab initio. See the case of Emefizhe v. Emefizhe (1965) 1 All NLR 233 where the court held that a marriage is void if either party was already married to another person at the time of the marriage and the case of Omoregbe v. Lawani (1980) 3 SC 108 where the court established that marriages within the prohibited degrees of consanguinity are void.

Grounds Which Render a Marriage Void

1.Existing Marriage: this happens if either party is already married to someone else at the time of the marriage (See section 33(1) of the Marriage Act).

2.Prohibited Degrees of Consanguinity: this is where marriages between close relatives, such as siblings, are void (See sections 3 and 4 of the Matrimonial Causes Act).

3.Lack of Consent: this happens if either party did not give valid consent, due to duress, fraud, or mistake, the marriage is void (See section 33(1) of the Marriage Act).

4.Non-compliance with Formalities: this is where failure to comply with the prescribed formalities for contracting a statutory marriage, such as not giving proper notice of the marriage or not obtaining the necessary licenses makes the marriage void (See sections 27-29 of the Marriage Act).

5.Underage Parties: this includes marriages involving parties who are under the legal age of marriage without proper consent (See sections 18 and 33(1) of the Marriage Act).

Voidable Statutory Marriage

A voidable statutory marriage is one that is valid until it is annulled by a court. It can be annulled on specific grounds, but it remains legally effective until such an annulment is obtained. See the case of C.M.C.S v. A.T.S (2002) 1 SCNJ 170 where the court annulled the marriage on the ground of non-consummation due to the willful refusal of the wife and the case of A.S. v. S.S. (1972) 1 All NLR (Pt. 2) 228 where the court held that a marriage is voidable if at the time of the marriage, either party was suffering from a venereal disease in a communicable form without the knowledge of the other party.

Grounds Which Render a Marriage Voidable

1.Non-consummation: this happens if the marriage has not been consummated due to the willful refusal of one party (See section 5(1)(a) of the Matrimonial Causes Act).

2.Mental Disorder: this happens if either party was suffering from a mental disorder at the time of the marriage, rendering them unfit for marriage (See section 5(1)(b) of the Matrimonial Causes Act).

3.Venereal Disease: this happens if at the time of the marriage, either party was suffering from a venereal disease in a communicable form without the knowledge of the other party (See section 5(1)(c) of the Matrimonial Causes Act).

4.Pregnancy by Another Man: this happens if the wife was pregnant by another man at the time of the marriage without the knowledge of the husband (See section 5(1)(d) of the Matrimonial Causes Act).

Statutory Bars to a Petition for Nullity of Voidable Marriage

There are certain statutory bars that can prevent a petition for the nullity of a voidable marriage from being entertained by the court. See the case of Awofeso v. Awofeso (1968) 1 All NLR 389 where the court dismissed the petition for nullity on the grounds of delay and continued cohabitation after discovering the defect. These bars or defenses includes:

1.Delay in Bringing the Petition: this happens if the petitioner fails to bring the petition within a reasonable time after discovering the grounds for nullity (See section 35 of the Matrimonial Causes Act).

2.Knowledge of the Defect: this happens if the petitioner knew of the defect and nevertheless continued to live with the respondent as husband and wife (See section 36 of the Matrimonial Causes Act).

3.Appropriating Conjugal Rights: this happens if the petitioner has, with knowledge of the defect, appropriated or exercised any conjugal rights (See section 37 of the Matrimonial Causes Act).

Effect of Decrees of Nullity in Respect of Void and Voidable Marriages

Void Marriages

A decree of nullity in respect of a void marriage confirms that the marriage was invalid from the beginning. The parties are regarded as never having been married, and no legal rights or obligations arise from the union. Any children born of the union are considered legitimate if born while the parties reasonably believed themselves to be married (See section 69 of the Matrimonial Causes Act).

Voidable Marriages

A decree of nullity in respect of a voidable marriage terminates the marriage from the date of the decree, not retrospectively. The marriage is considered valid up to the point of annulment. Legal rights and obligations incurred during the marriage remain valid, and children born of the union are legitimate. See section 69 of the Matrimonial Causes Act and the case of Olowofoyeku v. Olowofoyeku (2011) LPELR-8976(CA) where the court held that a decree of nullity for a voidable marriage takes effect from the date of the decree, not retrospectively, and all legal rights and obligations incurred during the marriage remain valid.