MARRIAGE UNDER THE NATIVE LAW AND CUSTOM

One thing we should have in mind before we go further on this discussion of marriage under the native law and custom is that such marriage are not strictly spouses’ affair.

Under the African customary law, traditional jurisprudence recognizes that marriage is part of the corporeal protocols ordained for greater values of any society and a member of a society of a marriageable age is expected to subscribe to it.

The first bond of life is marriage. Customary marriage entitles the family of the wife to win a token, not in terms of commercial consideration but for values the wife is found to be adorned with.

The marital power of the husband over the wife is exercised by the family of the husband. They are different modes of conducting traditional marriages in Nigeria as there are different ethnic tribes in the country.

As said earlier marriage under the custom and tradition is strictly not spouses’ affairs but that of their respective families so, How important is consent of the man or woman in case of a marriage under the consent and tradition, the Supreme Court recognize the importance of consent in OSAMWONYI V. OSAMWONYI (1972)SC 10 SC  in this case the consent of the wife to be was not sought, the marriage arrangement was concluded between families, it was held that the consent of the bride to be is a condition precedents to a marriage under the Benin customary law, as no consent was given ,there was in fact no subsisting customary law marriage at the time the respondent married the petitioner.

On whether mere moving in with a man constitute marriage under the Native laws and custom, in CHIAWERE V. AIHENU which the Court of Appeal followed in CHIEF SAKA LAWAL- OSULA V. MODUPE LAWAL- OSULA where it was held that living with a man and having children does not necessarily make the woman a wife of a man under the native law and custom. It was further held that a wife married under the native law cannot divorce the man simply by leaving him and staying with another man and having children for that other man.

Non judicial divorce means divorce which is extra judicial. It is not granted by the court but it is recognized under the Native law and custom. In OKPANUM V.OKPANUM (1972)ECSLR Agbakoba J said that unlike the English law(marriage under the act), dissolution of marriage under native law and custom  can be extra judicial. No ground for divorce need be alleged or proved, it is sufficient for a husband to arrange a meeting where he duly informs his parents-in-law of his intention to bring the marriage to an end.

Another means of divorce under the native law and custom is by refund of bride price, in NWANGWA V. UBANI (1997)10 NWLR one of the issues on whether the customary law marriage between the first respondent and Mr Ubani was dissolved. The appellant relied on a letter written to the first respondent to move out of the compound. The court held that the customary law marriage between the parties were not properly dissolved as no bride price and other marriage expenses were not refunded in accordance with the customary law marriage .NIKKI TOBI JCA  said..The dissolution of customary law marriage is not as stringent as that…a customary law marriage can be dissolved without judicial pronouncement or intervention

It is advised that if you will ever get married follow due process for you to have a backing either under the ACT or under the NATIVE LAW AND CUSTOM, as mere escaping with a man/woman does not make you his wife, the Act forbids it, the native law refuse to recognize it either.

Thank you.

Oyenike ALLIYU-ADEBIYI LLB(HONS) BL