Marriage is a universal institution recognized and respected throughout the world. As a social institution, marriage is founded and governed by the social and religious norms of the society. Therefore, the sanctity of marriage is a well-accepted principle in the world community. In Nigeria, unlike most European countries, two systems of marriage are recognized; statutory (monogamous) and customary law (polygamous) marriages. These two marriages differ fundamentally from character and incidents. It is therefore important to take this duality into account in any consideration of marriage. The scope of this work shall be limited to the concept of marriage, types of marriage, conflicts between customary law and religion vis-a-vis marriage and conclusion.
DEFINITION OF TERMS
The term marriage as well as culture and religion does not lend itself to a universal definition.
MARRIAGE: Is a socially or ritually recognised union between spouses that establishes rights and obligations between those spouses, as well as between them and any resulting biological or adopted children and affinity (in-laws and other family through marriage).
Section 256 of the Evidence Act, 2011 as amended defined a wife and husband to mean respectively the wife and husband of a marriage validly contracted under the marriage Act or under Islamic Law or Customary Law and includes any marriage recognized as valid under the marriage Act.
CUSTOMARY LAW
Judicially, customary law was defined by Braimain F.J in Owonyin V. Oinhtosho as a ”mirror of accepted usage” similarly, Qbaseki Jsc in Oyewunmi V. Ogunesan defined customary law in a more elaborate but restricted language as “the organic or living law of the indigenous people of Nigeria regulating their lives and transactions ”.
RELIGION
It may be defined as a system of designated behaviours and practices, worldviews, texts, sanctifies places prophecies, ethics or organisations, that relates humanity to super natural transcendental or spiritual elements.
THE CONCEPT OF MARRIAGE
Marriage is universally accepted to be an institution governed by the social and religious norms of the society. It is apt to state that marriage as an institution has been in existence from time immemorial. It can be traced back to the creation of man and is considered to have spiritual, moral and social significance in the society. It is therefore revered as sacred and thus heavily guarded by various religious, traditions, social norms and laws alike.
In Nigeria, the sanctity of marriage cuts across all regions of the country regardless of culture and religion. The major type of marriage that existed during the pre colonial era were the cultural/traditional marriage and the Islamic/Maliki marriage. Thus, the type of marriage was determined by the prevalent traditions and religions which governed the society where the parties lived and or where they originated from.
TYPES OF MARRIAGE IN NIGERIA
As stated earlier, the law recognizes two different systems of marriage in Nigeria. One system is based on English Law (statutory marriage), while the other is based upon “native law and custom” or more simply “customary law”.9
STATUTORY MARRIAGE:
This is marriage regulated by statutes ¹ⁿ. It is monogamous in nature. It is a marriage which Lord Penzance described in Hyde V. Hyde as the ‘’voluntary union for life of one man one woman to the exclusion of all others’’.
CUSTOMARY LAW MARRIAGE:
This is marriage contracted under native law and custom which does not exclude marriage under Islamic law and is polygamous in nature.
Marriages contracted under customary law are valid in the eyes of the law provided that such marriages comply strictly with native law and custom governing marriages in the locality where the marriage was contracted.
CONFLICTS BETWEEN CUSTOMARY LAW RELIGION VIS-A-VIS MARRIAGE
The dual system of marriage practiced in Nigeria, creates a vast amount of problems. The dynamics of culture and religion have had many influences, manifestations and occurrences in marriage within Nigerian society. These manifestations and occurrences have had a significant impact on the stability of marriage in modern Nigeria society. A recent observation of people’s attitudes towards marriages in the country has revealed the alarming negative effect of these events.
The factors that militate against the quality and sanctity of marriage in Nigerian society in the 21st century includes but not limited to:
SUPERRIORITY CONFLICT: With the emergency of the dual system of marriage in Nigeria, customary and statutory Marriage has pitted religion and customary law at direct conflict. Since the marriage Act only recognises a licensed place of worship (church), Marriage Registry and Nigerian Embassy Abroad as the only valid places of celebration of statuary marriage. Religious authorities have seized that opportunity to bastardize customary law marriage to some extent, undermining and painting customary law marriage to be inferior. Not once have I heard preachers of the faith make assertions that only marriages contracted in church “before God” is valid and attracts God’s blessings.
These assertions are not only erroneous but misleading as within the Nigerian sociocultural context, there is no valid statutory marriage without first contracting customary law marriage, while there is a valid customary law marriage without statutory marriage. I am of the firm belief that God is in every marriage provided that the parties to the marriage seeks His face.
SOCIAL STRATA CONFLICTS: In an era of declining customary values and norms most people place less or zero value to customary law marriage per the celebration. All energy is geared towards the statutory marriage (Church Wedding) and most couples plunge themselves into huge debts in a bid to impress and live above their means. A customary law marriage celebration which is relatively cheaper is gradually going into abeyance because of the balkanization by both religious leaders and parties to the marriage.
ALIEN CONFLICT: Statutory marriage is an imported marriage based on “English Law” which is fast eroding our customary law marriage. It is instructive to note that the Holy Bible did not stipulate any form or manner in which marriage should be conducted but only stopped short at acknowledging and enshrining the monogamous marriage for Christians. The popular “White Wedding” is not biblical but the way of life of the West that we have copied copiously and out-spent the progenitors. We have relegated our culture and imbibed another’s culture and the marriage Act we imported from the English Law could not be legislated to recognise or stipulate necessary measures or steps that would confer monogamous or statutory marriage status to would be couples that do not want to undertake the “White Wedding” option.
RESTRICTIVE LAW CONFLICT: The law has made it imperative that a valid statutory marriage must be conducted in a licensed place of worship and in accordance with section 7 t0 17 of marriage Act for a marriage to be valid. The law is so rigid that any ceremony of marriage in a church which does not conform with the requirements of a valid marriage in a licensed place of worship is simply a blessing of marriage. In Martins V. Adenuga, the court held that the blessing of a customary law marriage by the priest was hereby a blessing of a customary law marriage and therefore did not constitute a marriage. That our laws place premium on an imported concept of marriage to the detriment of our customary law marriages is a slap on our culture. The marriage laws need to be amended so as to extend the same benefits accorded statutory marriages to customary law marriages. It is conflicting that one needs to go through the requirements of statutory marriage just for the benefits it accords.
SOCIO-ECONOMIC CONFLICT: In Nigeria today the cost of living keeps soaring and under this situation many men cannot afford the exorbitant cost of white/statutory marriage, while the traditional/ customary law marriage option is cheaper, simpler, practical to go through by a would be couple who earns meagre wages. Our religious leaders keeps emphasising on the need for church wedding, without a corresponding emphasis on financial support from the church. I keep asking myself, this question; “why borrow to finance a wedding of not more than Eight (8) hours and be indebted for the rest of your marriage years?” There is no wisdom in this. For the marriage is the real and main thing not the wedding. Even the costliest of weddings don’t survive the rigors of marriage.
CONCLUSION
Marriage as a universal institution cuts across all regions of the country regardless of cultural and religious differences. The dual system of marriage created and obtainable under the marriage Act has generated a lot of conflict and controversies as addressed above. There is therefore the need for the National Assembly to jointly and severally examine and amend the corpus of Laws and procedure relating to customary law marriage in order to align the same with the internal best practises (customary law) and to resonate it with the contemporary sensitivity to the troubling conflicts addressed above.
EWA-UDU ONYA(Esq)
08101239098
ewauduonya@gmail.com
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