Introduction

A video recently went viral of a man who interrupted a wedding on the allegation that the bride is his wife of about 14 years and they are still married. While it was alleged that the wide claimed she has divorced the man having return the bride price of =N=25,000. This write up will discuss what constitute customary law marriage, how it is dissolved and how what is recoverable after the dissolution using Anambra and Imo state as a case study.

Requirements and essentials of a valid customary law marriage -

To make it valid, there are essential and formal requirements for the celebration of a valid customary law marriage. The details of such requirements vary from one locality to another but there are broad principles which are sometimes similar, viz:

(a)the parties to a customary marriage must possess the capacity under that law to marry each other;

(b)there must be payment of dowry, or bride price which is a gift or payment. It may be in money, natural produce or any other kind of property. This must be paid to the parent or guardian of the bride. It must be paid on account of a marriage of a female person and it must be for a marriage which is intended or has taken place; and

(c)there must be a ceremony of marriage and the handing over of the woman to the man's family. [Agbeja v. Agbeja (1985) 3 NWLR (Pt.11) 11 referred to]. (Pp.167, paras. A; D-E; 168, paras. A-B)

Dissolution of customary marriage -

The dissolution of a customary law marriage is not as stringent as that under the Marriage Act. A customary law marriage can be dissolved without judicial pronouncement or intervention. In other words, a customary law marriage can be dissolved extra-judicially. None of the parties has a legal duty to allege grounds of divorce and prove same as is required under the Matrimonial Causes Act, 1990. The spouses may decide to break the union and the usual defences of collusion or condemnation under statutory marriage are not available to any of them. But there must be a formal act on the part of the party who is tired and not willing to continue with the union or association. In most places the two families are involved in the dissolution. [Okpanum v. Okpanum (1972) ECSLR 561)

In Anambra and Imo State, Nigeria, customary marriage may be dissolved by mutual agreement between the husband (or his parents where he is young) and the parents of the wife in the presence of the marriage middlemen and one or more elders from each of the two families. Spouses who want divorce do not have to go to court to obtain it. The parties in the presence and, where necessary, active participation of the persons mentioned above decide how much of the bride-price and other marriage expenses paid on the woman concerned should be refunded to the husband. In coming to this decision, factors like the duration of the marriage and whether or not there are children of the marriage are taken into consideration. The bride-price and other marriage expenses which are refundable are then paid over to the husband through the hands of the marriage middlemen. This being done, the marriage is declared dissolved. Where neither the bride-price was refunded nor evidence that middlemen were present, the act of the husband merely asking his parents and relations not to allow the wife stay in the matrimonial home is not tantamount to a dissolution of the marriage.

On Amount recoverable upon dissolution of customary marriage –

On divorce in a marriage contracted under customary law, the dowry paid is recoverable but the gifts or presents given to the wife or her parents are not recoverable. However, all claims or debts other than dowry by one spouse against the other are recoverable in a separate suit as debts when supported by valid documents. [Okoriko v. Otobo (1962) WRNLR 48; Adepeju v. Adereti (1961) WRNLR 154 referred to]. (Pp.167-168, paras. F; A)

Although there is a presumption of no intention to create legal relations for family, social or domestic agreements, this presumption may be rebutted by evidence to the contrary and one of the ways of rebutting it, is if there is a written agreement. Prof. Sagay in page 115 of his book titled “Nigerian Law of Contract” stated as follows;

Although there is a presumption of no intention to create legal relations for family, social or domestic agreements, this presumption may be rebutted by evidence to the contrary and one of the ways of rebutting it, is if there is a written agreement. Prof. Sagay in page 115 of his book titled “Nigerian Law of Contract” stated as follows;

Also on page 116 of his book, he stated that;

“where the performance of a domestic or social engagement involves great sacrifices on the part of one or both parties, the presumption against the presence of contractual intention may be rebutted, particularly where the plaintiff has performed his own part of the agreement.”

Conclusion:

Where marriage is conducted under the customary law, such marriage is governed by customary law, hence to avoid hurt and disappointment, it is advisable that parties get involved and familiar with the tradition and custom they submit themselves to.