Double-Decker Marriage in Nigeria (Issues, Problems and Solutions)
Chapter One
OBJECTIVES OF THE STUDY
Many controversies and series of opinions and ideas have accompanied the formation, reasons, and necessity for a double-decker marriage. Many have expressed opinions about the necessity of clothing the customary type of marriage with its statutory flavor while to some people, it is a waste of money. Therefore, this study’s effort and major objectives will be to examine all the hullabaloos surrounding this common marriage system in Nigeria today. The study will examine the advantages, limitations, and reasons why people engage in double-decker marriages. At the end of the exercise, a standing form of model law will be profound by this study based on the researcher’s findings as regards double-decker marriage in Nigeria.
CHAPTER TWO
GLOBAL CONCEPT OF MARRIAGE EXAMINED
INTRODUCTION
Many view marriage as a private expression of their love for one another. For centuries, matrimony has been a very public institution impacted by tradition, culture, religion and laws. Throughout the centuries, the institution of marriage has been changing and continues to change. Most ancient societies needed a secure environment for the preparation of the species, a system of rules to handle the granting of property rights and the protection of bloodlines. The institution of marriage handled these needs.
However, people marry for many reasons, including one or more of the following: legal, social, emotional, economical, spiritual and religious. These might include arranged marriages, family obligations, the legal establishment of a nuclear family unit, the legal protection of children and public declaration of commitment.
DEFINITION OF MARRIAGE
Marriage is a social union or legal contract between people that creates kinship. It is an institution in which interpersonal relationships, usually intimate and sexual, are acknowledged in a variety of ways, depending on the culture or subculture in which it is found. Such a union often formalised via a wedding ceremony may also be called matrimony.12
E.I. Nwogugu defined marriage as follows: “Marriage is a universal institution which is recognised and respected all over the world. As a social institution, marriage is founded on and governed by the social and religious norms of the society13.
The biblical definition of marriage is a man clearing or being united to his wife and both will become one flesh14. Furthermore, marriage under Islamic law is referred to as Nikah. The meaning of this Arabic word is physical relationship between man and woman. It is also used to refer to the contract of marriage which makes the relationship lawful.
For some people in foreign jurisdiction like Europe, though the idea is not legalised, marriage is not a contract contracted to obtain a residence permit or an exit visa from a country in which one of the parties is normally resident or a citizen. However, marriage is not a mere contract but one that creates status15 . Meanwhile in that same England, the acceptable definition of marriage is put by Lord Penzance in Hyde V. Hyde16 which is the voluntary union for life of one man and one woman to the exclusion of all others. It must be noted importantly that the Nigeria Marriage Act17 talks about everything except the definition of marriage.
CONSTITUTION OF MARRIAGE UNDER THE NIGERIAN LAW
In Nigeria, unlike most European countries, two major types of marriage exist; monogamy and polygamy. The former is a marriage of one man to one woman while the latter is a marriage of one man to two or more wives. These two differ fundamentally in character and incidents.
Monogamous Marriage
The monogamous in Nigeria as in other parts of Sub-saharan Africa, is the English derivate that is the basis of all marriage status in its former colonies, territories and dependencies i.e it is the same England. It is the marriage which Lord Penzance described in Hyde v. Hyde18 as “the voluntary union for life of one man and one woman to the exclusion of all others”. Three characteristics of a monogamous union are contemplated in this celebrated case. These include the fact that it is to be a voluntary union based on the free consent of the two parties to the marriage. The marriage must be intended for the lifetime of the parties involved but not indissoluble.
CHAPTER THREE
DOUBLE-DECKER MARRIAGE IN NIGERIA: ISSUES AND SOLUTIONS
INTRODUCTION
In contemporary Nigeria, some legal pluralism of marriage has evolved. Couples after expended so much money on the celebration of marriage customarily or traditionally still go further to re-celebrate such marriage under the statutory law, thereby contracting what is known as “Double-Deck marriage”. It is the position of such marriage and the associated problems in Nigeria and the problems that arise when it is to be terminated that will be considered in this chapter.
DEFINITION OF DOUBLE-DECKER MARRIAGE
Nowhere in the marriage Act is double-decker marriage defined. The dictionary meaning74 of double-decker marriage however is a vehicle with two decks or a sandwich with two layers of filling. The illustration created in view of the above meaning is different or separate compartments but in the same bus and piloted by the same driver or separate layers of filling accommodated in one loaf. When one apply this illustration to the issue of marriage, a double-decker marriage would mean two validity permissible marriage contracted by the same persons. Section 33(1) of the Marriage Act (MA) states thus:
CHAPTER FOUR
PROSPECT OF DOUBLE-DECKER MARRIAGE IN NIGERIA
INTRODUCTION
Despite all the problems associated with Double Deck Marriage, there are still some uniqueness and importance that it possesses that still make us spouses contract it not minding the problems that can follow. Asides spouses personal reasons and benefits they derive from it, Double Decker marriage also is a way or two is of importance to the society at large. It is the general importance of Double Decker marriage that is to be examined in this chapter.
CHAPTER FIVE
CONCLUSION AND RECOMMENDATION
CONCLUSION
From all the aforesaid, it is clear that the legal issues involved in double-deck marriage in Nigeria are enormous. Amongst such issues are ;
- The incompatibility between what terminates marriages under the Act and what terminate same under the customary law. For instance while adultery and intolerability is a “fact” evidencing the irretrievable breakdown of marriage under the Act,109such is only a ground for divorce available exclusively to the husband under the customary law marriage system.
- The silence of the Marriage Act on the subsequent Act Marriage after a customary marriage.
- The non Nigerian law recognition of a double deck marriage as a class of marriage under any.
- A complete adoption of the co-existence theory will bring some practical difficulties as discussed in this paper and a wholly adoption of the “Conversion” theory may as well produce a bigger problems than it solves.
The Marriage Act110 only allows the customary law couple to celebrate a latter Act marriage while it prohibits a statutory couple from subsequently marrying under customary marriage law, although this latter rule is continually flouted. This is hardly surprising as it ignores the traditional importance of the customary law marriage and invariably implies that the non-existence of an Act marriage between the couple is a condition precedent to the celebration of a customary law marriage. The fact that a couple married under customary law can later marry under the Act inevitably creates the belief that the reverse is equally the case. And when a statutory spouse quite ignorantly flouts the provisions of section 35 of the Marriage Act111 (by contracting the latter customary law marriage), it is in the ardent belief that the two marriages legally co-exist.
It is the believe of couples who contract this kind of marriage that each marriage serves a purpose and the combined effect gives solid foundation to the marriage, that the two marriages have different incidents each of which cannot be relegated to the background. Actually these rationale apply even in cases of subsequent Act marriages. However, many Nigerians are ignorant of the incompatibility of the respective incidents of the two marriages which is one of the problems inherent in a system of dual marriage laws and cries out for reforms. The intention of the marriage celebrants is to be bound by the rules governing each marriage.
RECOMMENDATION
Even though Marriage Act does not expressly forbids a couple already married under the customary law from subsequently marring under it, and the customary law neither frown at the subsequent marriage under the Act after the initial customary marriage, however due to the unresolved legal issues concerning double-deck marriage and since “…a party who celebrated a “double-deck” marriage could not have two different types of marriage status – one under the customary law and the other under the statute….”112.However, the following recommendations have been humbly proffered for the improvement of the law as regard the termination of double-deck marriages:
The Law Makers
In other to clear the controversies associated with double deck marriages, there is the need for the law makers to introduce a new marriage law that will prohibit dual marriage in Nigeria. The passage of such law will curb the extravagant and unnecessary spending by couples on a single marriage. Such law will make it mandatory for couples to either contract Act marriage, or contract customary marriage only.
Marriage Registry
The Registry should embark on a vigorous enlightenment campaign to discourage couples from wasting their money on the re-celebration of a marriage that has already been celebrated customarily. Couples should be educated that “… in Nigeria Customary Marriage is a legal marriage, a marriage recognized by customary law….”113and that the re-celebration will not add anything to their status. This will halt or at least reduce the erroneous belief that it is until when couples contracted a double-decker marriage before their marriage can be legal, safe and protected.
The spouses
The spouses should have a firm mind whenever contemplating on marriage, they should either contract a marriage according to the custom which is a customary law marriage, or they should go for a pure Act marriage since both are recognized in Nigeria. The Supreme Court confirmed this in Jadesimi vs Okotie-Eboh114, that “The status of being married under Islamic law or Customary Law is well recognized in this country”
Communities
Since status of being married under Islamic law or customary law is well recognize in this country and since “Native law and custom” has equal recognition as enforceable laws 115.Communities should be mandated to present certificate to couples as an evidence of such marriage in order to allay the fears of marrying couples with regard to the documentation of their relationship.
In view of these, this research work has taking deliberate and precise effort towards examining the advantages, limitations and reasons why people engage in double-decker marriage. A standing form of model law has also been proffered by this study based on research findings of this work.
I do humbly hope that this research work will be an invaluable contribution to development of law as far as double-deck marriage is concerned.
BIBLIOGRAPHY
ARTICLES IN JOURNAL
ARTICLES ON INTERNET
- Nwogugu E.I, Family law in Nigeria (Revised Edition Heniman Studies inNigeria law).
- The Noble Quran, chapter 4v. 5, Darussalam Publishing and Distributors.
- Magret C, Family law( Spectrum Law Series) 2003.
- S.C, The Customary Law Manual(Government Press Enugun 1977) 238
- Kasumanu A.B and Salacus JW, Nigerian Family Law(Butterworth London 1966).
- Bromley P.M, Family Law(3rd Edition Butherworth, London 1960) 157.
- Okonkwo and Naish, Criminal law(3rd Edition London, Sweet and Maxwell).
- Okagbue R.O “ The Marriage Dilemma”, ( Government Printers, Enugu 1975).
- Graverson R.H, Status in the Common Law(University of London Press, London 1953).
- Holy Bible, Genesis 2: 24, New International version.(Zomdervan PublishingHouse).