There is no limit to the number of wives a man can marry under customary law which is not the case under English marriage model
Nigeria is made up of many ethnic communities and each ethnic group has its unique and diverse marriage customs. However, there are some common features and customs acceptable to most of these ethnic groups.
Customary Marriages will be discussed in this write-up as opposed to the English or marriage under the Act, also referred to as white wedding or court wedding.
Under customary law, marriage creates an everlasting relationship not just between the man and the woman but also between the two families of the persons involved. Each spouse is regarded by the members of both families, hence not as married only to his/her spouse but into the families and has therefore become members of both the bride and the groom families.
Marriage under Native law Custom may be polygamous but not necessarily so. A polygamous marriage is the situation whereby one man has more than one wife. There is no limit to the number of wives a man can marry under customary law which is not the case under English marriage model.
I need to point out here that it is common in this age and time for a couple to first perform the traditional marriage rites, that is; get married under customary law and thereafter maybe weeks or months later marry under the Act. Most city dwellers and educated folks do that. The legal implication of such marriage is that it would have to remain a monogamous marriage for such marriage to remain valid in law.
The process of traditional marriage commences after the would be couple have agreed to get married and their intention has been communicated to their respective families. It is normal in Nigeria setting for both families to make discreet inquiries on the families involved in order to discover if there is any disqualifying factor, eg in the East, if any of the intending couple belongs to OSU caste, that may be the end of any preparation for marriage. Also in the West, if one of the families has history of lunacy, the arrangement may be discontinued.
In customary marriages, the following are the requirements for a valid customary marriage:
Introduction:
After parties (couple) have agreed to get married, they will inform their respective families. The groom’s family will liase with the bride family to arrange for them to meet their would be in-laws. Presents will be brought for the host family for the formal introduction ceremony, it is usually not a big event. It is to be noted that introduction does not necessarily mean that marriage will hold because the persons involved may decline to go further for reasons best known to them after the introduction.
Betrothal
After introduction, the families concerned will carry our their discreet investigation and when they are convinced that there are no issues as mentioned above that could prevent the marriage from proceeding , the betrothal, which is the formal engagement of the parties will now take place.
The engagement usually consists of a formal process of agreement to marry between the prospective spouses, the giving of consents by their parents or guardians and the giving of gifts (in money and/or kind) by the man to the woman and her family. After the betrothal, then actual marriage takes place.
Capacity of the parties to the marriage
Most of the customary laws in Nigeria do not prescribe any age for the solemnization of customary law marriage. This lacuna in the rule of customary law has to a large extent encouraged a high incidence of child marriage, with all its attendant evils. In some areas, child betrothal is rampant but marriage does not in fact take place until the parties have attained the age of puberty. There are a lot of child marriages under customary and religious laws because there was no law against child marriage (most of which occur in the northern part of the country) but the passing of the Childs Rights Act 2003, has significant effects on child marriages as no marriage of persons below the age of eighteen is allowed under section 21 of the Nigerian Law.
The customary Court however held that notwithstanding the fact no dowry was paid, the couple having lived together for more than 10 years and had four children, they are deemed as married
However, this practice is still ongoing in the parts of the country where it was rampant, the existing law notwithstanding.
Consent of the parties and parents
The intending couple has to give their consent to a customary marriage. The Supreme Court in the case of Osamwonyi v. Osamwonyi 1973 NMLR 26 held that under Bini Native Law and Customs, the consent of the parties was necessary for a valid marriage under customary law. Parental consent is also necessary before a valid customary marriage can take place. In the case of Okpanum v. Okpanum (1972) 2 ECSLR 561, the High Court of East Central State of Nigeria held that in order to constitute a valid customary marriage, there must be parental consent and mutual agreement between the parties.
Bride price (Dowry)
Marriage consideration otherwise called bride price or dowry is one of the essential requirements of a valid customary marriage. The bride price includes any gift or payment in the form of money, natural produce or any kind of property given by an intending husband and his family to the parents or guardian of a female person on account of the marriage. It varies from one custom to the other.
However, a recent decision by a Customary Court in Lagos state (note that customary Courts in Lagos State are chaired by legal practitioners) appears to have changed the necessity of bride price in customary Marriages. The couple has lived together for more than 10 years and they had four children. One of the parties contended that there was no marriage under the native law and customs because no bride price was paid by the man. The customary Court however held that notwithstanding the fact no dowry was paid, the couple having lived together for more than 10 years and had four children, they are deemed as married.
It should be borne in mind that it’s a decision of a Customary Court which may be upturned if appealed against.
Marriage solemnisation
Solemnization or celebration is an essential ingredient of a valid customary law marriage. It generally involves breaking kola, pouring libation, sharing drinks and other activities. The bride is invariably handed over to the bridegroom and his family. The content of the ceremony may vary from tribe to tribe.
In the case of Omoga v. Badejo 1985 NCNLR 1075, it was held that there must be a formal handing over of the bride to the groom in the presence of the two families and witnesses and the acceptance and taking away of the bride to her husband house for marriage under Yoruba Native Law and Custom, to be valid.
There are peculiar types of marriages in Nigeria which will be discussed in the next segment of this write up.
