Recently a number of celebrities contracted new marriages. Not necessarily news except that in one case the Male celebrity contracted a second marriage under customary law and in the other case a celebrity contracted a second marriage in a church while his first marriage was still subsisting according to his first wife that said she has not been served divorce papers. In both instances there was a lot of online discussion about polygamy, bigamy and morality. In response to a comment I told someone that if someone is married under the statutory law and the second marriage is conducted under customary law it does not matter if the statutory marriage has not been dissolved. Someone else asserted that this was misinformation and that in fact marrying under customary law while still married under a statutory law was illegal and constituted the offence of bigamy. In this blog post I try to clarify the issue for myself and for my readers.
What is Bigamy?
Bigamy is the act of entering into a marriage with one person while still legally married to another person. Simple. Right? Not so fast.
There are at least 3 types of marriage recognised by the law in Nigeria; statutory marriage also known as ‘court marriage,’ customary marriage and the so called Christian marriage. A well informed discussion of bigamy in Nigeria requires a definition of marriage. We encounter our first challenge in appropriately defining ‘marriage.’
What is the definition of marriage?
According to the Oxford Dictionary marriage is ‘the legally or formally recognised union of two people as partners in a personal relationship (historically and in some jurisdictions specifically a union between a man and a woman.)’ Several other online dictionaries likewise define marriage as a union between two people, usually male and female but increasingly without gender prescription. Even where marriage is recognised as possible between people of the same sex it is still mostly defined as a union of two people. While this is undoubtedly the default in the west and increasingly the dominant point of view globally, the definition ignores marriages between more than two people, such as polygamy, which is described as a subtype of marriage. But in a world where polygamy is the norm such as the world of precolonial nations across Africa, monogamy is the subset and the exception. Today, the increasingly dominant definition of marriage is a union between one man and one woman.
‘Marriage’ is an English noun. In Igbo language ‘marriage’ is best described by a verb, as in ‘ilụ di’ and ‘ilụ nwunye’ which means ‘to marry husband’ and ‘to marry wife’ respectively. The root is ‘ilụ’ which is to marry. Some online Igbo translate tools and dictionaries translate ‘marriage’ in Igbo as ‘alụmdi’ and ‘alụmdi na nwunye’ but the root verb is not tied to gender, to marry is something that both men and women do and the state of marriage cannot be defined as ‘alumdi’ which transliterated means ‘I married a husband.’ But this is perhaps more than this blog post will attempt so I will leave it for another post. My point in raising the matter here is that the definition of marriage in Igbo language does not limit marriage to one man and one woman or even one man and several women. In Igbo tradition women could marry women and I knew some in my lifetime growing up in my hometown UmuAka. These marriages were for procreation and had nothing whatsoever to do with homosexual relations between the women getting married, at least that we know of. Procreation is the primary reason for marriage in Igbo world view. The Supreme Court of Nigeria struck down the custom on the repugnancy doctrine in the 1970s.
Section 3 of the 2014 Same Sex Marriage Prohibition Act SSMPA provides that only a marriage between a man and a woman is valid in Nigeria. Section 7 of the SSMPA is the first piece of Nigerian legislation to actually define ‘Marriage’ and it defines it as ‘a legal union entered into between persons of opposite sex in accordance with the Marriage Act, Islamic Law or Customary Law.’ Neither the 1914 Marriage Act nor the 2004 Matrimonial Causes Act give a definition of marriage. However, they do provide the criteria for a valid marriage, you will find those criteria here and here. Section 1 Chapter 1 of the 2004 Nigeria Criminal Code applicable in the southern states of Nigeria also defines a Christian marriage which it describes as ‘a marriage which is recognised by the law of the place where it is contracted as the voluntary union for life of one man and one woman to the exclusion of all others,’ in other words, a monogamous marriage.
The Offence of Bigamy
The Criminal Code makes it an offence for anyone to marry when they already have a husband or wife living. The Code is applicable in the 18 states of the south east, south west and south south zones in Nigeria. (Section 384(1)Penal Code in Northern States as modified by the implementation of state Sharia Laws and the implications are not considered in this blog post).
Section 370 of the Criminal Code Act in Nigeria provides that;
‘Any person who, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, is guilty of a felony and is liable to imprisonment for seven years.’
In goes on;
‘This section of this Code does not extend to any person whose marriage with such husband or wife has been dissolved or declared void by a court of competent jurisdiction, nor to any person who contracts a marriage during the life of a former husband or wife, if such husband or wife, at the time of the subsequent marriage, shall have been absent from such person for the space of seven years, and shall not have been heard of by such person as being alive within that time.’
Penal Code 2004 s384(1) provides in a like vein as follows:
Whoever having a husband or wife living marries in a case in which that marriage is void by reason of is taking place by reason of wife or husband shall be punished with imprisonment for a term which may extend to seven years and shall also be liable to fine.
Whoever having a husband or wife living marries in a case in which that marriage is void by a reason of his taking place during the life of that husband or wife, shall be punished with imprisonment for a term which may extend to seven years and shall be liable to a fine.
The 1914 Marriage Act provides the instances of void marriages.
Section 33. (1) No marriage in Nigeria shall be valid where either of the parties thereto at the time of the celebration of such marriage is married under customary law to any person other than the person with whom such marriage is had.
Section 35. Any person who is married under this Act, or whose marriage is declared by this Act to be valid, shall be incapable, during the continuance of such marriage, of contracting a valid marriage under customary law, but, save as aforesaid, nothing in this Act contained shall affect the validity of any marriage contracted under or in accordance with any customary law, or in any manner apply to marriages so contracted.
Section 39. Whoever, being unmarried, goes through the ceremony of marriage under this Act with a person whom he or she knows to be married to another person, shall be liable to imprisonment for five years.
Section 46. Whoever contracts a marriage under the provisions of this Act, or any modification or re-enactment thereof, being at the time married in accordance with customary law to any person other than the person with whom such marriage is contracted, shall be liable to imprisonment for five years.
Section 47. Whoever, having contracted marriage under this Act, or any modification or re-enactment thereof, or under any enactment repealed by this Act, during the continuance of such marriage contracts a marriage in accordance with customary law, shall be liable to imprisonment for five years.
Aboki J.C.A in Momoh v. Momoh explained thus:
’Section 34 of the Marriage Ordinance stipulates that all marriages celebrated under the Act shall be good and valid in law to all intent and purposes. However, the Ordinance provides that any person who contracted a marriage under the Ordinance shall be incapable of contracting a valid marriage under any native law or custom.’
The foregoing would appear to suggest that a customary marriage (and this includes a customary marriage under Islamic Law) contracted after a statutory marriage under the Marriage Act, is void and of no legal effect. It would also appear to suggest that a statutory marriage conducted while there is a subsisting customary marriage to someone else is also void. It would suggest that more than half of Nigerian marriages may be void because of the prevalence of customary marriages that follow a valid and subsisting statutory marriage to someone else. Surely it cannot be the intent of the law to void millions of marriages and throw the status of millions of children into question? Thankfully the Child Rights Act and the Constitution have done away with the obnoxious principle of illegitimacy but what about the rights of the men and women whose marriages would become void if this law was enforced?
Dead Letter Law
In Nigeria bigamy, which forms the bedrock of sanctity of monogamous marriages, as has been pointed out above, is a dead letter law.
Nwudego N. Chinwuba
When I went to law school these provisions that sought to create bigamous offences were described as dead letter laws. A dead letter law is a statute, law or ordinance that is no longer enforced but has not been formally repealed. They are uniformly dead because of lack of moral sentiment in support of the law. They are ignored by law enforcement, and therefore there are few or no practical consequences for breaking them. In the one hundred and eight years of the existence of these laws that sought to criminalise polygamy there have been exactly two judicial cases of bigamy and one was against a woman who had married three different men during the subsistence of each prior marriage, therefore not a question on polygamy at all. Furthermore in both instance the penalty was so light (less than 2 months on prison with an option of fine) as to be no deterrent at all. The justification of the trial judge was that the offence did not involve deceit, which is a common element of bigamy in English Law. The parties involved sincerely thought that their prior marriages were over or the people that were marrying sincerely thought that the marriage was valid under customary laws. It would appear that the moral sentiment of the community is not sufficiently supportive of these bigamous laws. Dead letter laws inspire uncertainty and disrespect for the law. It would be best for the laws to be repealed, reviewed and amended or modified.
In Kuforiji & Anor. v. V.Y.B. (Nigeria Ltd.) Obaseki, Justice of the Supreme Court stated that bigamy even though a dead letter law was “in our Statute book.”
Aguda (1971:120f.) states the problem succinctly:
“The vast majority of Nigerian men, may be the percentage is over 95, practice polygamy in one form or the other. A number of these ostensibly practise monogamy but have one or two other “wives”. Some of them who are cautious do not perform “marriage ceremonies” with the other “wives”. But some in fact do perform these ceremonies to which they in fact invite people who have to do with administration of justice including Police Officers, Doctors, Lawyers, Ministers of State and Religion, top civil servants, etc., who do attend such ceremonies with full knowledge of the correct situation. The fact is that, as I have said earlier, some of these people themselves have perhaps indulged in a similar breach of the law.”
Welstaed and Nwogugu (2006) ask:
“Should the offence of bigamy be retained in our law? A positive answer should be given because it reflects our constitutional and legal framework. Once a man is given the freedom to move from the monogamous to the po- lygamous union at will and irrespective of the feelings of his partner, we would have undermined our legal system. What is required is the cultivation of strict obedience to and enforcement of the law. There is a role for education and enlightenment of women as to their legal rights.”
In 2004 the Nigerian Family Law Reform Commission proposed the removal of bigamy from the law but there has been no response to the proposal from the legislature. Lagos expunged bigamy from its statute books in 2012, while men hailed the action as the “triumph of common sense” women rejected it and went to court. The offence remains in Federal Legislations.
A History Of Bigamy Laws in Nigeria
Bigamy was unknown to the tribes that lived in precolonial Nigeria. Polygamy was the norm. Even where a woman happened to leave one husband for another her primary responsibility was to ensure that her bride price was returned to her prior husband so that her new husband could claim the children they had together. Bride price determined who got the children. A woman’s freedom to move from one husband to another varied from one tribal group to another. In Igbo Nigeria the only requirement was that the woman’s bride price was paid or returned to determine where the children she bore could claim lineage rights. If her bride price has not returned to her first husband any children she bore with a second man (or third or fourth etc) would still belong to the first. Marriage was concluded on the payment of bride price, which has been well established legally. Divorce or the end of a formal marriage was finalised by the return of the bride price.
Monogamy is a pillar of the Christian religion and while there has been support for monogamy by women’s groups there has been an equal amount of support for polygamy by women’s groups in Nigeria and Africa. In the 1980s market women in Nigeria and the left leaning feminist group Women in Nigeria differed significantly in the issue of polygamy. The market women’s association members insisted that polygamy was in their favour because it gave them freedom to pursue their economic interests while co-wives who were not so inclined took care of the domestic responsibilities including sometimes shared child care. Richard Henderson, researcher in Onitsha, also wrote that in the 1960s that polygamy enabled women to pursue trade interests that would otherwise have been impossible under the burden of child rearing otherwise. According to him women that had a trade had less number of children as well as less domestic responsibilities because they had co-wives to fill in the gaps. The imposition of monogamy in the territory of Nigeria was championed by Christian missionaries, the codification of the law was specific in an effort to make marrying couples chose monogamy and that is to marry under native law and custom or under Christian law, which also became statutory law.
The Marriage Act of 1914 attempted to impose monogamy on the Christian faithful. It has been difficult to enforce monogamy even among Christians in Nigeria. There are even recurring and persistent rumours that Christian pastors who by their sects are sworn to celibacy nevertheless have wives, children and mistresses and often overlook the sins of their congregations.. Many reasons have been given for the continued support for polygamy in Nigeria and Africa. Some argue that the lack of social protections force women to be remain reliant on men but some of the loudest female voices in support of polygamy are often women that are for all intents and purposes financially self reliant and independent. Others argue that socialisation makes women see marriage as the ultimate achievement and therefore desperate to marry at whatever cost. In my opinion we have not yet reached a stage of our collective consciousness where polygamy is not longer seen as a viable option. Polygamy is still pervasive and normal. In English law, from which Nigerian law derives, bigamy is a straight forward offence. There are no distinctions between statutory and customary marriages, there are no conditions under which marriage to someone else while a subsisting marriage to a spouse is legal and polygamy is illegal.
So what is the conclusion to be drawn from these facts? Can you conduct a valid marriage under customary law when married to someone else under statutory law? Will a statutory marriage conducted while either party is married under customary law to someone else supersede such marriage? Does a statutory marriage confer greater legal protection on the parties to a marriage than any type of religious or customary marriage? Is your customary marriage invalid because it was conducted after a subsisting statutory marriage? Is your statutory marriage invalid because it was conducted after a subsisting customary marriage? How do these situations affect your rights and the rights of your children within a marriage? It would appear that only a court of competent jurisdiction can make a determination of these questions, until such a time and if there is a review of the law or it is repealed. So the only question is who will be the first to file that case?
In Nigeria, a magistrate court does not have jurisdiction to handle bigamy cases. According to the Criminal Code Act, bigamy is a felony offense and is therefore within the exclusive jurisdiction of the High Court. The High Court is the highest court of first instance in Nigeria and has the power to handle serious criminal offenses such as bigamy.
Therefore, if someone is charged with bigamy in Nigeria, the case will be heard in a High Court, and not a Magistrate Court. It is important to note that the jurisdiction of courts in Nigeria may differ depending on the specific state, so it is advisable to consult with a legal practitioner in the relevant state for specific guidance.
If you find yourself in a situation where you need specialised advice on marriage, custody or divorce you can book an appointment for a private conversation with me here.
MzAgams 