Introduction to customary marriage in Nigeria

Customary marriage is one of the two types of marriage recognized by law in Nigeria. The other form of marriage is statutory marriage.

Customary marriage is a marriage contracted under the native law and custom of any place in Nigeria. The custom of the people where such marriage was contracted governs such marriage including it’s validity and it’s dissolution.

How to contract Customary marriage.

A man who finds a lady to marry, first propose to the lady, and then approach the family of the would-be-bride to seek their consent to marry their daughter.

Upon approval of the would-be-Marriage, the man fulfills the customary demands which include payment of bride price, and traditional celebration of the marriage.

After the ceremony, the father of the bride handle over the bride to the groom and they are deemed to be married customarily. This differs from place to place anyways.

REQUIREMENTS OF A VALID CUSTOMARY MARRIAGE

(a) Capacity to enter marriage.The parties to a customary marriage must be of marriageable age under that native law and custom.

(b)Payment of Bride price:
There must be payment of dowry, or bride price which is both a gift and payment. The bride price can be paid in cash or through property and it is paid to the father of the bride or someone in locus parentis.

(c) Ceremonization of the marriage. The marriage must be celebrated. In Igbo land, the core celebration is the “igba nkwu nwanyi”, a celebration where the woman is usually giving wine to give to her husband and items are presented to the bride’s family.

Dissolution of Customary marriage.

There is no particular method for dissolving customary marriages. Any of the parties to the marriage can wake up and decide that he or she is no longer interested.

On the part of the woman, she can just return to her father’s house and inform them that she is no longer interested in the marriage. The man can as well, can take the wife back to her parents and inform them that he is no longer interested in the marriage.

In some customs, the bride price paid by the man would be returned to the man and the marriage is deemed dissolved.
Again, a party seeking for dissolution of customary marriage can also apply to customary court for divorce.

CATEGORIES OF DIVORCE UNDER CUSTOMARY LAW

There are basically, two categories of divorce under customary law. This include:
a.Judicial divorce
b.Non- Judicial divorce.

JUDICIAL DIVORCE:

This is divorce of parties to customary marriage by court. In Nigeria, only the customary court has power to dissolve a Customary marriage.

In rare cases, magistrate court may be involved in dissolution of marriage contracted under the native law and custom. But as noted, this only happens where there are no customary court within the area.

Where parties failed to use a non-judicial means to dissolve the marriage, dissolution by court may be the last option. It doesn’t mean that parties cannot walk directly to customary court through their lawyers to obtain divorce, but it is just natural that before marriage crumbles, that friends and family members would have tried to reconcile the parties to no avail.

HOW TO COMMENCE DIVORCE IN CUSTOMARY COURT

Anyone who wishes to dissolve his or her marriage in customary court approaches the court by way of petition.The petition often filed by the person’s lawyer contain brief particulars of the parties to the marriage and the brief facts about their marriage and issues in dispute and reliefs sought from court.

A copy of petition is filled at the customary Court registry of that court. The said petition is served on the other party to the marriage who will appear in the court on a named date as Respondent.

THE MATTER IS HEARD.

Although, customary court is not a Superior Court of records, but it’s proceedings are very similar. On the first day the matter will come up in court, parties will be made to take their plea.

Thereafter the matter will go into hearing. Parties will call their witnesses before closing their cases. At the close of hearing, the parties will adopt their final Addresses and court will enter it’s judgement.

JUDGEMENT OF COURT

The court will dissolve the marriage per it’s judgement. No specific condition is to be proved before court will dissolve the marriage. What is important is that parties were married customarily and that they no longer wish to continue the marriage.

The court has power to determine issues of custody and properties. Court equally has power to order the return of the bride price where the man demands for it. The bride price can be returned to the man directly or to court who will then hand over the money to the man and that terminates the marriage.

ORDERS COURT CAN MAKE IN CUSTOMARY DISSOLUTION OF MARRIAGE.

In Customary dissolution of Marriage, the issues usually in contention are: issue of custody of Children, property and issue of refund of bride price.

Custody of children.

The usual attitude of court is to award custody of children to the husband and not the wife. This is because In customary marriage, even a wife is a property of her husband.

Yet, there are circumstances where the welfare of the children will take greater priority. The court will consider the age of the children of the marriage, their educational needs and psychological need in determining who should be in custody .

See Order 13 (1) of the Customary Court law of Ebonyi State for example which provides

“In any matter relating to the guardianship of Children, the interest and welfare of the children shall be the first and paramount consideration”.

This interest of the children considering their age, may force the court to award custody of the children to their mother.

MARITAL PROPERTY

When it comes to property jointly acquired by parties during the pendency of the marriage, a wife is often overlooked. As we said earlier, the wife is also a property of the husband. She is denied of any right to property.

But on the moral ground, the husband may allow her some properties and some clothing and beddings as unjust as this may sound and that is why contemporary court decisions has given women equal right to properties. See Edet v. Essien (1972) 11 NLR 47
See also Article 16(3) of the Convention for the Elimination of All forms of Discrimination against Women (CEDAW) which provides for the same rights and responsibilities upon dissolution of marriage

REFUND OF BRIDE PRICE.

In rare occasion, the husband may demand the return of the dowry as one of the reliefs before the court. The court has power to order the refund of the dowry. The dowry can be paid to court or directly to the husband.

It is Worthy to note that the amount of money recoverable as bride price depends on whether the wife has given birth or not. The full money paid during the wedding ceremony can be recovered only where the wife has not given birth. see the case of Egri v. Uperi (1974)4 E. C. S. N. L. R. 632

NON-JUDICIAL  DIVORCE

The party to customary marriage may not go through the rigorous process of court proceedings. In this case, there are two modes used to dissolve customary marriage by non-judicial means:
a. Mutual consent
b. Unilateral action of one person

MUTUAL CONSENT.

In marriage, two families are involved (the family of the bride and the family of the groom). By mutual consent of the two families, the marriage between the parties can be dissolved. This happens where the two families have tried every means to reconcile the parties to no avail.

UNILATERAL ACTION OF THE PARTIES.

Where any of the parties to customary marriage desires to terminate the marriage, he or she can do that by simply informing the other party that he or she is no longer interested in the marriage.

Such expression of intent to terminate the marriage may be, in case of a woman followed by her, relocating back to her father’s house or any place she desires to go to. In case of a man, the man may throw his wife out of his house including her properties.

The man can as well take the wife back to the parents and inform them that he no longer want to continue the marriage. In extreme cases, the man may also demand the refund of the bride price.

GROUNDS FOR DISSOLUTION OF CUSTOMARY MARRIAGE.

There is no compulsory ground that need be established before customary marriage can be dissolved as noted by resolutionlaw. Unlike statutory marriage, where the matrimonial causes Act specifically stated that for statutory marriage to be dissolved, it must be established that the marriage has broken down irretrievably. See Section 15 of the Matrimonial Causes Act.

For customary marriage, the only thing necessary is that the parties or one of the parties has lost interest in the marriage and seeks to dissolve the marriage.

However, despite the fact that special circumstances need not be established, the following grounds can facilitate customary divorce:
a. Contagious diseases.
b. Willful refusal to consumate the marriage.
c. Impotency.
d. Laziness or bad character
e. witchcraft
f. desertion
g. adultery

DIFFERENT KINDS OF CUSTOMARILY DIVORCES IN SOME PLACES IN NIGERIA.

a.UNDER BIU NATIVE LAW.

BIU is a a town and also a Local Government in Southern part of Borno State. By section 8 of the Biu Native Authority (Declaration of Biu Native Authority law and custom) Order 1964, only husbands can unilaterally terminate marriage.

b Under Maliki School of Islamic law, the following type of divorce are allowed:
i.Khul’u: a divorce where a wife can pay ransom to her husband to secure her release.
ii. Talaq: a divorce where the husband can repudiate the marriage.

c. Under Islamic personal law:
There is provisions for:
i. Tariq or faskh: a divorce where the wife seeks her release on the ground that her husband has violated the terms and conditions of the marriage.
ii.Mubaraq: a. divorce where both husband and wife agrees to divorce.

Under Islamic personel traditions, the following form of divorce may equally be allowed:
a. Ha: a divorce where the man makes oath to abstain from sexual intercourse
b. Lian: a divorce where a man alleges that the wife has committed adultery and denounces her pregnancy.

THE PLACE OF BRIDE PRICE IN CUSTOMARY MARRIAGE.

The bedrock of Customary divorce is the return of the dowry(bride price). Once the father of the bride(or anyone in place of the parents), returns the bride price, the marriage is as good as it is over.

This is only applicable to non-judicial divorce. Until the bride price is return, the marriage is deemed to be still subsisting and any child born by the wife is still deemed to be the child of the husband. Though, Superior evidence and rule of natural justice may set aside such claim.

The issue of compulsory return of dowry will not be applicable, where:

a. The bride price is returned and the husband refuse to collect same
b. The husband elect or renounce to collect the bride price
c. The wife has remained unmarried (this is only applicable in some custom among igbo people).
d. In Biu, where the husband divorces the wife unilaterally, he is not entitled to return of Dowry.
e. Under Maliki School, Court may dissolve marriage without ordering the refund of money paid where the husband was not maintaining the wife.