A petition for annulment of marriage in Nigeria is one by which a party to the marriage seeks to establish that due to some defects, the marriage has become invalidated, and hence null and void.
Nullity of marriage could be distinguished from dissolution of marriage in that, in the case of nullity of marriage, the marriage is invalid ab initio, while in dissolution of marriage the marriage is brought to an end because of matrimonial offences stated in the Matrimonial Causes Act.
By virtue of Section 2 (2) Matrimonial Causes Act 1970, a person may institute a matrimonial cause under this Act in the High Court of any state of the Federation for proceeding for a decree…
2(2) (b) of nullity of a voidable marriage;
2(2) (c) of nullity of a void marriage;
Where a marriage is invalid it may be void or voidable. A void marriage is the type of marriage that has never been in existence. A voidable marriage on the other hand is the type of marriage that is good while subsisting but may be annulled at the instance of one or both parties due to some existing defect.
In the case of a void marriage, the Court decree is not necessary to bring the marriage to an end because the parties were never husband and wife in the first instance.
Nevertheless, in order to remove any iota of doubt a decree that simply declares the existing act that there has never been a marriage may be obtained in respect of a void marriage.
Distinction between Void and Voidable Marriages was stated by Lord Green In the case of De Reneville V.De Reneville (1949) Page 100,111 (C.A.) thus:
“A void marriage is one that will be regarded by every court in any case in which the existence of the marriage is in issue as never having taken place and can be so treated by both parties to it without the necessity of any Decree annulling it; A voidable marriage is on e that will be regarded by every court as a valid subsisting marriage until a Decree annulling it has been pronounced by a Court of competent jurisdiction.”
Invalidity of a Void marriage may be asserted by any person but where the marriage is voidable only one of the Spouses can do so, because until it is annulled the marriage is valid.
It is noteworthy that on the death of either the husband or the wife to a void marriage, relations or executors may question the validity of the marriage so as to show that the surviving spouse is not a widow/ widower, which implies that the husband or the wife is not entitled to the property.
However, if the marriage is voidable it cannot be questioned by third parties because the marriage was valid till the death of the spouse and subsisting marriage. The other Spouse is entitled to all the rights of a widow/widower.
GROUNDS ON WHICH MARRIAGE MAY BE VOID
According to Section 3 of the Matrimonial Causes Act, the grounds on which a marriage celebrated after the commencement of the Act may be void ab initio are set out as follows:
- EXISTING LAWFUL MARRIAGE
Where either of the parties to marriage is at the time of the marriage lawfully married to other person such marriage will be null and void. Even where a customary law marriage precedes a statutory marriage with a different person, the marriage will still be null and void.
Section 33 (1) Matrimonial Causes Act 1970 provides that:
“No marriage in Nigeria shall be valid where either of the parties thereto at the time of the celebration of such marriage is married by native law or custom to any person other than the person with whom such marriage is had.”
The marriage under this subsection must be proved with a high degree of certainty to invalidate the marriage on the ground of a previous marriage under customary law.
It is noteworthy that where parties to a subsisting customary marriage contract a subsequent statutory marriage, the marriage shall not be void.
- PROHIBITED DEGREES OF CONSANGUINITY OR AFFINITY
Where a marriage celebrated by parties is within prohibited degrees of consanguinity or affinity the marriage will be void..
Consanguinity is a marriage contracted between parties who are related by blood, while affinity is the marriage of a man with person to whom he is related through marriage.
The prohibited degrees of marriage were dealt with in Section 3, First Schedule and Section 115(1) of the Matrimonial Causes Act 1970, which provides that;
“Marriage of a man is prohibited if the woman is, or has been his:
Ancestress wife’s mother
Descendant wife’s grand mother
Sister wife’s daughter
Father’s Sister wife’s son daughter
Mother’s sister wife’s daughter’s daughter
Brother’s daughter Father’s wife
Sister’s daughter grand father’s wife
Son’s son’s wife
daughter’s son’s wife
Marriage of a woman is prohibited if the man is, or has been, are
Ancestor husband’s father
Descendant husband’s grand father
Brother husband’s son
Father’s brother husband’s daughter son
Mother’s brother mother’s husband
Brother’s son daughter’s husband
Sister’s son son’s daughter’s husband
daughter’s daughter’s husband
Nonetheless, by virtue of Section 4 Matrimonial Causes Act 1970, in same circumstance it may be possible for person within the prohibited degrees of affinity to marry each other with the consent of a High Court Judge.
- INVALIDITY BY THE LEX LOCI CELEBRATIONIS (LAW OF THE PLACE OF CELEBRATION).
A marriage which has been invalidated by reason of failure with the form prescribed by the lex loci celebrationis is void, this provided for by Section 3 (1) (c) of the Matrimonial Causes Act 1970.
By the provision Section 33(2) Matrimonial Act 1914:
‘A marriage shall be null and void if both partied knowingly and wilfully Acquiesce in it celebration’ without compliance with some formalities prescribed by the Act.
A marriage is void under this provision if it is clearly shown that both parties to the marriage had knowledge of the defect in the formalities but wilfully agreed to its celebration.’
For a marriage to be void under this sub-heading the following must be considered:
- Place of celebration
By virtue of Section 33(2) (a) of the Matrimonial Act 1914, a marriage contracted under the Marriage Act must be celebrated in a Registrar’s office or a Licence place of worship or a place prescribed in a Special Licence. Any marriage celebrated in any other place than this will be void ab initio.
- Celebration of Marriage under false name or names
- Celebration without a Certificate or a Special Licence
- Marriage not celebrated by a minister of a religion or a Registrar of marriage.
A marriage under the Act must be celebrated either by a recognized minister of some religious denomination or body or by a Registrar of marriages. Failure to comply with the requirement makes the marriage void ab initio.
- LACK OF CONSENT
Where neither of the parties to marriage consents freely to the union, the marriage is invalidated.
The following factors negate a party’s consent to a marriage:
- Fraud or Duress
Fraud is where there is dishonest misrepresentation by a party to the marriage by which the consent of the other was obtained, while duress is when a party to the marriage is compelled to contract such marriage by creating a state of fear or apprehension, which prevented the party from freely consenting to the marriage.
Where consent is proved to have been obtained by fraud or duress, the marriage is annulled not because of the presence of fraud or duress but because of the absence of consent.
By virtue of Section 3 (1) (d) of the Matrimonial Causes Act 1970, where the consent of a party to the marriage is not a real consent because that party is mistaken as to the identity of the other party or as to the nature of the marriage performed. The mistake of that party will make the marriage void ab initio, it is not every type of mistake that will invalidate a marriage. If a party voluntarily marries the other party thinking that the marriage us full of fortune and it turns out after marriage that the other party is a debtor, the marriage will not be decreed invalid.
The Second part of mistake contained in Section 3 (1) (d) (ii) of the Matrimonial Causes Act 1970, is one as to the nature of the marriage ceremony performed between the parties.
Where the consent of one of the parties is not real because that party is mentally incapable of understanding the nature of the marriage contracted, the marriage is null and void.
- Marriageable Age
Under section 3 (1) (e) of the Matrimonial Causes Act 1970, If either of the parties is not of marriageable age the marriage is null and void. The Marriage Act of 1914 or The Matrimonial Causes Act 1970 did not prescribe any marriage age. It has been suggested that recourse should be had to the Common law age of marriage. Due to this lacuna in the law, it is submitted that Section 3 (1) (e) of the Matrimonial Causes Act 1970, has no effect until law fixes some age limit.
GROUNDS ON WHICH MARRIAGE IS VOIDABLE
- INCAPACITY CONSUMMATE MARRIAGE
Where either of the parties to a marriage is incapable of consummating the marriage by Virtue of Section 5 (1) (a) of the Matrimonial Causes Act 1970, that is one of the parties is impotent the marriage is voidable.
Impotency is different from Sterility in that the latter refers to the incapacity to procreate children while the formal is one who is incapable of having normal sexual relation. Where sexual relations are partial or imperfect there will be no consummation. The use of contraception or the practice of coitus interuptus amount to consummation as it was held in the case of Baxter V. Baxter (1948) A.C.274:  L.J.R. 479  2 All E.R886;64 T.L.R.9; 92 S.J.25.
It is noteworthy that in order to make a marriage voidable the incapacity to consummate must exist both at the time of the marriage and at the hearing of the Petition. Before a marriage is declared voidable on the ground of incapacity to consummate, the Court must be satisfied that the defect is not curable; that is it cannot be cured by medical treatment.
- UNSOUNDNESS OF MIND, MENTAL DISORDER AND EPILEPSY.
By virtue of Section 36 (1) (a) of the Matrimonial Causes Act 1970, a marriage is voidable if at the time of its celebration one of the parties was of unsound mind or a mental defective , or subject to recurrent attacks of insanity or epilepsy.
If any of this mental deficiency arose only after the marriage it will not void the marriage.
The unsoundness of mind need not be absolute idiocy, but could be weakness of understanding.
A spouse who is of unsound mind or mental defect is regarded by the law as being incapable of carrying on a normal marital life. The other party to the marriage is allowed to petition for the nullity of the marriage. Where a spouse is at the time of the marriage subject to recurrent attacks of insanity or epilepsy, the marriage will be voidable. The marriage will not be declared voidable at the petition of the party suffering from the mental deficiency or epilepsy.
- VENEREAL DISEASE
According to Section 5 (1) (c)of the Matrimonial Causes Act 1970, the marriage is voidable where at the time of its celebration either party was suffering from a venereal disease in a communicable form. If it cannot be shown that the party in question was suffering from the disease at the time of the marriage, the disease would not constitute a ground for nullity.
The party alleging the venereal disease in communicable form may prove it in various was including the calling of medical evidence.
- PREGNANCY OF THE WIFE BY A PERSON OTHER THAN THE HUSBAND
By virtue of, where at the time the marriage was celebrated the wife was pregnant by a person other than the husband, the marriage will be voidable at the option of the husband.
By virtue of Section 35 (c) of the Matrimonial Causes Act 1970, the wife so pregnant cannot obtain a decree of nullity on the ground of her pregnancy. But where the petitioner had knowledge of the pregnancy at the time of the marriage as this would amount to an approbation of that.
Moreso, the Court will refuse a decree where the petitioner with full knowledge of the fact and without just cause allows his right to lapse.
- OTHER RESTRICTIONS IN RESPECT OF SECTIONS 5 (B) (C) OR (D) OF THE MATRIMONIAL CAUSES ACT 1970.
By virtue of Section 37 of the Matrimonial Causes Act 1970, three further restrictions was imposed on the granting of a decree of nullity in respect of marriages which are voidable by reason of insanity, venereal disease or pregnancy at the time of marriage.
- By virtue of Section 37 (a) of the Matrimonial Causes Act 1970, no decree of nullity can be made on any of the above grounds except the Court is satisfied that the petitioner was at the time of the marriage ignorant of the fact constituting the ground.
- By virtue of Section 37 (b) of the Matrimonial Causes Act 1970, in order to obtain a decree it must be shown that the petition was filed not later than 12 twelve months from the date of marriage.
- According to Section 37 (c) of the Matrimonial Causes Act 1970, for the decree of nullity to be granted it has to be proved that marital intercourse has not taken place with the consent of the petitioner since he discovered the existence of the facts constituting the ground.
If the petitioner had knowledge of the ground at the time of the marriage he will said to have approbated the disease or conduct of the other spouse.
In conclusion, the ceremony of marriage must be strictly proved in proceeding for nullity.
More so, the decree for annulment of marriage by virtue of Nigerian law can only be granted to any petitioner who is able to establish the ground for void and voidable marriage stipulated in the Act.
A person whose marriage does not fall under any of the provisions for annulment of marriage may opt for dissolution of marriage or legal separation.
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