Long-Term Store
C. Haptic Memory or Store The sensory memory of touch is generally referred to as
II. Short-Term Memory – The small section of sensory input that we pay attention to, or
CHAPTER FOUR
DEFINITION OF MARRIAGE 4. 1 Failure of the Act to Define Marriage
Part of the criticisms of the Nigerian MCA is its failure to define marriage. The only clue of what the Act envisages as marriage is contained in Section 3 (1) of the Act which inter-alia states as follows: ‗A marriage is void, where either of the parties is at the time of the marriage, lawfully married to some other person.1‘
However, the conduct and incidents of statutory marriage in Nigeria are regulated principally by the Marriage Act2 and the Matrimonial Causes Act3.
4.2 Essential Validities of Statutory Marriage
… in order to convert a customary law marriage into a statutory law marriage, the parties must consciously take the steps and adopt the procedure contained in the Marriage Act.
(b) Consent of the Parties
Marriage being a voluntary union presupposes that each party has given his or her consent freely, without duress or fraud or mistake as to the identity of the other party, or as to the nature of the ceremony performed7 . Absence of such consent vitiates the marriage as provided in S.3 (1) (d) of the Matrimonial Causes Act.
(c) Sanity
Section 3 (1) (d) (iii) of the Matrimonial Causes Act states specifically that parties to a marriage must be sane and therefore capable of understanding the nature of the marriage contract.
(d) Age
The issue of marriageable age is not very clear, as the Marriage Act did not stipulate the age of marriage. The Matrimonial Causes Act merely indicated that a marriage is void, where ‗either of the parties is not of marriageable age‘8. The learned Nwogugu9 is of the view that in the absence of a statutory definition of age of marriage, recourse may be had to the common law age of puberty-fourteen years in case of a boy and twelve years for a girl as held in Harrod v Harrod10. It is my humble opinion in this work that the common law age is rather too young for embarking on such an enterprise
7Section 3 (1) (d) of the MCA 2004
8 Section 3 (1) (e) of the MCA, LFN 2004
9 EI Nwogugu, Family Law in Nigeria (Revised edn, Ibadan: Heinemann Educational Books , 1990) p.24.
10(1854) 69 ER 344
as marriage. It is recommended that the age of twenty one be adopted, since it is the age at which the Marriage Act dispenses with parental consent11. Alternatively, the Constitutional age for adulthood (eighteen years) may be adopted, which is also now stipulated by the Child‘s Right Act.
(e) Prohibited Degrees of Consanguinity and Affinity
According to statute12 parties are prohibited from contracting marriage with any person who falls within their degrees of consanguinity or affinity. Schedule 1 (section 3) of the Matrimonial Causes Act sets out the prohibited degree of consanguinity of a man to include those who is or has been the man‘s ancestress, descendant, sister, father‘s sister, mother‘s sister, brother‘s daughter and sister‘s daughter while marriage within his degree of affinity include that between a man and his wife‘s daughter, father‘s wife, grand-father‘s wife, son‘s wife, son‘s wife and daughter‘s son‘s wife . The reverse position applies to a woman. The same section states that it is immaterial whether the relationship is of whole blood or half-blood, or whether it is traced through, or to any person of illegitimate birth. S.4 of the Matrimonial Causes Act however, provides that persons who wish to marry each other but are within the prohibited degree of affinity may under exceptional circumstances apply to a judge of the High court (one with the extended jurisdiction) for permission to do so. The judge if satisfied with the circumstances may, by order permit the applicant to so marry. Violation of the prohibited degrees makes a marriage void.
11S. 48 of the MCA Ibid 12S. 3 (1) (b) Ibid
(f) Parental Consent
Besides the consent of the parties to a marriage, parental consent is required where either party is under twenty-one years of age and is not a widow or a widower13. The written and signed consent of the father not mother is required, but if he is dead or of unsound mind or absent from Nigeria, that of the mother, or if both are dead or of unsound mind or absent from Nigeria, that of the guardian of such party. S. 19 of the Marriage Act provides for signature of consent by persons unable to write or to understand English Language while S. 20 of the same Act provides for consent where no parent or guardian is capable of consenting.
It is my submission that the provision which requires only the consent of a father is rather discriminatory against women. It is my humble suggestion that this particular provision be reviewed so that the rights of mothers may be recognized and duly exercised.
It is important to note that unlike all the other rules for essential validity of statutory marriage, absence of parental consent does not vitiate the marriage by virtue of S. 33 (3) of the Marriage Act14 This is also the holding of the court in Agbo v Udo15 . 4.3 Formal Validity of Marriage
In addition to the foregoing conditions which parties must meet in order to celebrate a valid statutory marriage, the statutes set down formalities which parties ought to go through before the solemnization of marriage.
13. S. 18 of the Matrimonial Causes Act Ibid
14 Ibid
15 (1947) 18 NLR
a. Notice of marriage
Either of the parties intending to marry shall apply to and obtain forms of notice from the Registrar of the marriage district in which the marriage is intended to take place.
This is signed and returned to the Registrar16 . S.8 provides for persons unable to write or understand English language. Upon receipt of the notice, the Registrar shall enter it into the marriage notice book and publish a copy of it for public perusal for a period not less than twenty one days but not more than three months17. The essence of the publication is to give the opportunity to any person whose consent to the marriage is required by law or to any one who knows of any just cause why the marriage should not be celebrated to enter a caveat against the issue of the Registrar‘s certificate18.
b. Registrar’s Certificate
Where no caveat is entered or where it was entered and has been removed,19 the Registrar shall at any time after the expiration of twenty one days and before the expiration of three months from the date of the notice upon payment of the prescribed fee, and proof of conditions by affidavit shall issue his certificate20. The affidavit which shall be sworn by the applicant shall state that:
(i) One of the parties has been resident within the district in which the marriage is intended to be celebrated for at least fifteen days preceding the granting of the certificate;
16 Section 7 of the Marriage Act 2004
17 S. 10 Ibid
18 S. 14 Ibid
19 S. 16 Ibid
20 S. 11 Ibid
Each of the parties to the intended marriage (not being a widower or widow) is twenty-one years old, or that if he or she is under that age, the consent hereinafter made requisite has been obtained in writing and is annexed to such affidavit;
(ii) There is no any impediment of kindred or affinity or any other lawful hindrance to the marriage;
(iii) Neither of the parties to the intended marriage is married by customary law to any person other than the person with whom such marriage is proposed to be contracted.21
Section 13 of the Marriage Act provides for the grant of special licence in some cases to the applicant. This automatically, circumvents the procedure for the notice of marriage and the registrar‘s certificate and authorizes the celebration of marriage between the parties by a registrar or a recognized minister of a religious denomination or body.
c. Celebration of Marriage
Parties to a statutory marriage having obtained the registrar‘s certificate, may celebrate their marriage in a licensed place of worship22, in a registrar‘s office23 or at a place other than licensed place of worship or the office of a registrar of marriage under special licence24. Marriage under such license may be celebrated by a minister of religion or a registrar. It is important to note that the Marriage Act (Amendment) Decree 197125 provides for the valid celebration of marriage
21 S. 11 of the Marriage Act Ibid
22 S. 21 Ibid 23S. 27 Ibid
24 S. 29 Ibid
25 No 14 of 1971
outside Nigeria, where at least one of the parties is a Nigerian. Such marriages must be contracted before a Nigerian diplomatic or consular officer of the rank of Secretary or above in a Nigerian diplomatic or consular mission office.
The statute states succinctly that whether a marriage is celebrated in a licensed place of worship, Registrar‘s office or in a place other than the licensed place of worship or Registrar‘s office, the officiating personnel shall immediately after the celebration, complete in duplicate and issue to the parties, a marriage certificate.
A copy of the said certificate shall also be filed with the registrar of marriages for the district in which the marriage took place.26