ENFORCEABILITY OF AGE LIMIT FOR MARRIAGE IN NIGERIA
ABSTRACT
Child Marriage is a topic which has raised so much public outburst and has caused a lot of controversies. It is a topic which comes with it a great deal of public emotions. Child marriage is tied to a number of factors including religion, traditions and customs. Child marriage usually refers to two separate phenomena which are practical in some societies. The first and most common practice is that of a young child being given out in marriage to an adult. In practice, it is almost always a young girl being married to a man. The second practice is a form of arranged marriage in which the parents of two children from different families arrange a future marriage. In practice, the individuals who become betrothed often do not meet one another till the wedding ceremony, which occurs when they are both considered to be of marriageable age. Whether a marriage is to be condemned for falling within the meaning of child marriage depends on whether such marriage is between an adult and a child. In other words, a marriage is enforceable only when it cannot be said to be a child marriage. The question that this raises therefore is, “what is the age limit for a valid marriage?” the answer to this question appears to be uncertain. The law has made an attempt in this regard. For instance in Nigeria, some statutes provide a specific age as the minimum age for marriage. The problem however is that there is no uniformity of application of these statutes. Indeed the law on age limit for marriage in the Southern Nigeria is not uniform with the Sharia law as it applies in some Northern parts of Nigeria. Again, the customary laws of the regions appear to apply different standards for determining marriageable age. This work attempts to examine the different enactments in force in Nigeria and how they apply with regard to marriageable age. It also attempts an examination of the customs of the three major ethnic groups in Nigeria namely Hausa, Igbo and Yoruba, and their practices on marriageable age with a view to determining the validity of theses customs based on the validity tests. The work also looks into the practices of other nations on child marriage and marriageable age. A solution on how uniformity of marriageable age can be achieved will be given at the end of the work. This work is divided into five chapters. Chapter one deals with the general introduction while chapter two deals with the overview of the statutes that provide for marriageable age in Nigeria. Chapter three deals with marriageable age under the Customary law while chapter four deals with the enforceability of age limit for marriage in foreign jurisdiction. Finally, chapter five deals with the conclusion and recommendations.
TABLE OF CONTENTS
Title Page…………………………………………………………………………….. i
Certification…………………………………………………………………………... ii
Dedication……………………………………………………………………………. iii
Acknowledgements…………………………………………………………………… iv
Table of Contents …………………………………………………………………….. v
Table of Statutes………………………………………………………………………….. vi
Table of Cases ………………………………………………………………………. vii
Abbreviations…………………………………………………………………………... xii
Abstract …………………………………………………………………………… xiv
Chapter One: Introduction
1.1 Definition of Terms…………………………………………………………
1.2 Types of Marriages in Nigeria………………………………………………
1.3 Child Marriages in Nigeria………………………………………………….
1.4 Validity of Marriage in Nigeria……………………………………………..
Chapter Two: Overview of the Statutes Governing Marriageable Age in Nigeria
2.1 Domestic Laws………………………………………………………………
2.1.1 Marriage Act…………………………………………………………………
2.1.2 Matrimonial Causes Act……………………………………………………...
2.1.3 The Constitution………………………………………………………………
2.1.4 Child’s Rights Act…………………………………………………………….
2.2 International Laws……………………………………………………………
2.2.1 African Charter on the Rights and Welfare of the Child……………………..
2.2.2 Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages………………………………………………………………………………
2.2.3 Convention on the Rights of the Child………………………………………..
2.2.4 Universal Declaration of Human Rights……………………………………….
Chapter Three: Marriageable Age under the Customary Law
3.1 Igbo Custom……………………………………………………………………
3.2 Yoruba Custom…………………………………………………………………
3.3 Hausa Custom…………………………………………………………………..
Chapter Four: Enforceability of Age Limit for Marriage in Foreign Jurisdictions
4.1 USA…………………………………………………………………………….
4.2 England………………………………………………………………………….
4.3 India……………………………………………………………………………..
4.4 Cameroon………………………………………………………………………..
4.5 An Evaluation of the Laws Governing Marriageable Age in the above Jurisdictions…………………………………………………………………………….
Chapter Five: Conclusion and Recommendations
5.1 Conclusion………………………………………………………………………
5.2 Recommendations………………………………………………………………
Bibliography……………………………………………………………………………... 71
TABLE OF STATUTES
LOCAL STATUTES
Age of Marriage Law, 1956
Section 3(1)………………………………………………………….
Section 4(1)………………………………………………………….
Section 6……………………………………………………………..
Child Rights Act 2003
Section 21………………………………………………………………
Constitution of the Federal Republic of Nigeria, 1999
Section 12…………………………………........................................
Section 29(4) …………………………………………………………
Section 29(4) a …………………………………………………….....
Section 29 (4) b……………………………………………………….
Criminal Code Act
Section 21……………………………………………………………
Section 361 ………………………………………………………….
Interpretation Act
Section 18………………………………………………………………
Matrimonial Causes Act
Schedule 1………………………………………………………. …….
Section 3 ………………………………………………………………
Marriage Act
Section 33(1)…………………………………………………………..
Section 49…………………….………………………………………..
Native Authority (Declaration of Bill) Order NALN 9 of 1964
Section 1(a) ……………………………………………………………
Native Authority (Declaration of Borgu Native Marriage and Custom) Order NALN 52 of 1961
Section 2(1)……………………………………………………………
Native Authority (Declaration of Idoma Native Marriage and Custom) Order NALN 63 of 1959
Section 2(1) a …………………………………………………………
Native Authority (Declaration Tiv) Order NALN 149 of 1995
Section 2(a)……………………………………………………………
FOREIGN STATUTES
England
Marriage Act 1753 ……………………………………………………
India
Hindu Marriage Act 1955
Section 5………………………………………………………………..
Section 5 (iii)…………………………………………………………...
Goa Civil Code…………………………………………………………
Bare Act 1909…………………………………………………………..
AnandKarj Marriage Act 1909………………………………………
Indian Penal Code, 1860
Section 375………………………………………………………………
Child Marriage Restraint Act 1929…………………………………….
Child Marriage Restraint (Amendment) Act 1978……………………
Prohibition of Child Marriage Act 2006
Section 3…………….……………………………………………………
Section 4………………………………………………………………….
Section 5………………………………………………………………….
Section 6……………………………………………….…………………
Section 9…………………………………………………………...……..
Section 10 ………………………………………………………………….
Section 12………………………………………………………………….
Section 15………………..…………………………………………………
Section 16………………………………………………………………….
Cameroon
Cameroonian Penal Code, 1981
Article 52…………………………………………………………………..
Civil Status Registration Ordinance, 1981………………………………
United States
Mississippi Code of 1972
Section 93 (1-5)…………………………………………………………….
Comoros
Comoros Penal Code, 1982
Section 299…………………………………………………………..…….
INTERNATIONAL STATUTES
African Charter on the Rights and Welfare of the Child, 1990
Article 2……………………………………………………………………
Article 21…………………………………………………………………..
Article 21(2)……………………………………………………………….
African Women’s Protocol
Article 6………………………………………………………………………
Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages, 1964
Article 1……………………………………………………………………
Article 2……………………………………………………………………
Article 3…………………………………………………………………….
Convention on the Rights of the Child, 1989
Article 1…………………………………………………………………….
Article 3…………………………………………………………………….
Article 19…………………………………………………………………..
Article 24…………………………………………………………………
Article 28………………………………………………………………….
Article 29………………………………………………………………….
Article 34………………………………………………………………….
Article 36………………………………………………………………….
General Recommendation No.21 of CEDAW Committee 1994
Paragraph 36………………………………………………………………..
SADC Protocol on Gender and Development, 2008
Article 8(2)…………………………………………………………………
Universal Declaration on Human Rights, 1948
Article 16(1) ………………………………………………………………..
Article 16(2)…………………………………………………………………
CHAPTER ONE
INTRODUCTION
1.1 Definition of Terms
1.1.1 Age
Age is defined as a span of years during which some event occurs. It is also defined as the number of years something has been alive or in existence. Age has also been defined as a period of time, especially one marking the time of existence or the duration of life.
1.1.2 Age Limit
An age limit is the oldest or youngest age at which you are allowed under particular regulations to do something. It is also defined as the age at which a person is allowed or not allowed to do something.
1.1.3 Child
This word has two meanings in law: (1) In the law of the domestic relations, and as to descent and distribution, it is used strictly as the correlative of “parent,” and means a son or daughter considered as in relation with the father or mother. (2) In the law of negligence, and in laws for the protection of children, etc., it is used as the opposite of “adult,” and means the young of the human species, (generally under the age of puberty,) without any reference to parentage and without distinction of sex. A child also means every human being below the age of eighteen years unless, under the law applicable to the child, majority is attained earlier.
1.1.4 Child Marriage
Child marriage is a formal marriage or informal union entered into by an individual before reaching the age of 18. It is also defined as any marriage of a child younger than 18 years old in accordance to Article 1 of the Convention on the Right of the Child.Child marriage, defined as a formal marriage or informal union before age 18, is a reality for both boys and girls, although girls are disproportionately the most affected
1.1.5 Marriage
The legal status, condition, or relationship that results from a contract by which one man and one woman, who have the capacity to enter into such an agreement, mutually promise to live together in the relationship of Husband and Wife in law for life, or until the legal termination of the relationship.Marriage is also defined as the civil status of one man and one woman united in law for life, for the discharge to each other and the community of the duties legally incumbent on those whose association is founded on the distinction of sex.
1.2 Types of Marriages in Nigeria
There are three types of marriages legally recognized in Nigeria.
⦁ The Customary Marriage
⦁ The Civil/Statutory Marriage
⦁ The Islamic Marriage
1.2.1 Nigeria Customary Marriage
There are various ethnic communities in Nigeria and the various ethnic groups have their different marriage customs. There are however some generally accepted customs common to most of them which will be discussed here.
Marriage under customary law creates a relationship not only between a man and woman but also between the two families involved. The wife is regarded by the members of her husband’s family as having been married not solely to her husband but into the family and therefore a member of their family. The husband on the other hand is not so regarded by his wife’s maiden family, even though there exist a continuing relationship with that family.
Marriage under Customary Law is largely polygamous. A polygamous marriage is the union of one man with several wives. There is no limit to the number of wives a man can marry under customary law.
After intentions to marry has been communicated between the two parties concerned and also between their respective families, discreet inquiries may be carried out by each of the families in order to discover facts about the parties. These facts may sometimes be based on the family’s social and health background as well as the character of the party. For example, investigations may be carried out to find out if the family concerned has any contagious or hereditary disease such as mental illness; whether the person concerned has bad habits such as stealing or lying; or whether the family concerned belongs to the system of outcasts known as Osu(amongst the Ibo’s). Some of the facts found may constitute bars to the proposed marriage.
The law insists on the payment of the bride price in other to have a valid marriage. However it doesn't insist that the payment must be completed before the marriage can take place. But part payment must be made before a valid marriage can be performed. And in practice this is what happens. For some states and communities the payment of the bride price is in different stages and the man can do one stage and request to come back at a stipulated time or when he can to complete the payment of the bride price. And the woman will be considered married and they are allowed to start their lives as husband and wife.
In most states and communities in Nigeria, the bride price is payable to the father. In the absence of the father it is payable to the male head of his immediate family. In the absence of a male head, it is payable to a guardian.
In practice the customary marriage is referred to as the traditional marriage. The Yorubas call it the engagement.
The formal traditional ceremony is where the groom brings all that he's been asked to bring in the bridal list he was given. And the elders of the bride's family conduct the ceremony and accept the bride price. After which there's a lot of eating and drinking.
The traditional marriage is compulsory. The paying of the bride price to marry a woman is the oldest ceremony for having a valid marriage. In Nigeria and as a Nigerian, without it, the society doesn't consider you married even if you go to court to register your marriage and get a marriage certificate.
1.2.2 Nigerian Civil Marriage
Nigerian civil marriage also known as statutory marriage and popularly known as court wedding in Nigeria is where the couple registers their marriage under the Marriage Act of Nigeria and obtain a marriage certificate.
This type of marriage is in accordance with the Marriage Act which is a federal legislation which makes provisions for the celebration of marriages in Nigeria. It is clear that the Act is designed only for the celebration of marriage between a man and a woman, and the marriage has to be a monogamous one. A monogamous marriage has been defined in section 18 of the Interpretation Act as follows:
A marriage which is recognized by the law of the place where it is contracted is a voluntary union of one man and one woman to the exclusion of all others during the continuance of the marriage.
A civil marriage is compulsory because it offers security to the woman and her unborn children. The wife has rights under the law as legally married to her husband.
The civil ceremony doesn't involve much and it takes very little time. You can get married within an hour and on any day of the week. All you'll need are two witnesses, one for the bride and one for the groom.
1.2.3 Islamic Marriage
Islamic marriage like customary marriage is a polygamous one which allows the man to take up to four wives if he desires. It possesses most of the features of customary law marriage already discussed.
1.2.4 Other marriage ceremonies
⦁ Religious marriage - AKA White wedding
Religious marriage ceremony is simply to bless the marriage. For some doctrines however it is more than that. It's especially to make the couple aware of the seriousness of the commitment they are making and remind them of the guidelines for a successful marriage as offered in the holy book, the bible.
Marriage after all is a divine institution. And there's a standard set forth in the Holy Scriptures for its success. The religious marriage is optional. Many couples are doing without it.
The white wedding is supposed to be a combination of the religious marriage ceremony and the wedding reception party. But some are now having white wedding without the religious ceremony but instead have the court wedding and after have a reception party.
For a religious marriage to be legal it must be licensed and recognized by the state. Usually churches that conduct weddings need to get approval from the state. This way, a person having a religious wedding doesn't have to go to the court to register and collect a marriage certificate; this is made available to them through the church.
1.3 Child Marriages in Nigeria
In Nigeria, particularly northern Nigeria has some of the highest rates of early marriage in the world. The Child Rights Act of 2003 sets the national legal minimum age of marriage at 18. To be effective, however, state assemblies must take necessary measures to implement the Act, and to date, only 23 of Nigeria’s 36 states have taken concrete steps to execute the minimum age of marriage.
While data shows a 9% decline in the prevalence of child marriage since 2003, action is needed to prevent thousands of girls from being married in the coming years.
To further complicate matters, Nigeria has three different legal systems operating simultaneously—civil, customary, and Islamic—and state and federal governments have control only over marriages that take place within the civil system.
Nationwide, 20 percent of girls were married by age 15, and 40 percent were married by age 18. Child marriage is extremely prevalent in some regions; in the Northwest region, 48 percent of girls were married by age 15, and 78 percent were married by age 18. Although the practice of polygamy is decreasing in Nigeria, 27 percent of married girls aged 15–19 are in polygamous marriages.
Consequences of Child Marriage
1. Child marriage is a fundamental violation of human rights. Many girls (and a smaller number of boys) are married without their free and full consent. By international conventions, 18 years has been established as the legal age of consent to marriage. If the timing of marriage does not change, over 100 million girls will be married as children in the next ten years.
2. Child marriage is closely associated with no or low levels of schooling for girls. In West and Central Africa, girls with three or fewer years of schooling are five times more likely than girls with eight or more years of schooling to marry before age 18. Poverty leads many families to withdraw their daughters from school and arrange marriage for them at a young age. These girls are denied the proven benefits of education, which include improved health, lower fertility, and increased economic productivity.
3. Child marriage, in many instances, marks an abrupt transition into sexual relations with a husband who is considerably older. The younger a bride is,the more likely it is that she enters marriage asa virgin, and the larger the age differencebetween her and her spouse. Parents frequentlyarrange marriages for their daughterswithout their input or consent. In some settings it appears that the younger a girl is when she gets married, the less say she has in the choice of her husband.
4. First births carry special risks for both mother and child. The vast majority of births to adolescent girls are first births that occur within marriage. The foremost risk first births carry is prolonged or obstructed labor, which can result in obstetric fistulas in settings where access to care is limited. First births also have elevated risks of pre-eclampsia, malaria, and infant mortality. Girls who give birth during adolescence require special attention because they are less mature and are simultaneously coping with their own and their baby’s physiological, emotional, and economic needs. Globally, adolescent mothers tend to be poorer, less educated, and less adequately nourished than older mothers; they also face greater social disadvantage.
5. Married girls have distinct and in some settings substantial risks of acquiring HIV. Child brides typically experience high rates of unprotected sex; have significantly older (and thus more sexually experienced) spouses, and are largely unable to negotiate safer sex. In settings with generalized HIV/AIDS epidemics, these factors may leave married girls vulnerable to infection.
1.4 Validity of Marriage in Nigeria
The above topic will be discussed under the various types of marriages obtainable in Nigeria.
1.4.1 Statutory Marriage
Parties will be deemed to have the capacity to marry if they satisfy the marriage Registrar of the following requirements:
i. Age
The Marriage Act does not specify any minimum age limit. It merely states that unless a party is a widow or widower, there is need to obtain the written consent of either the parents or guardians where such person is under the age of twenty one years. The Act further provides in section 49 that whoever shall marry or assist any person to marry a minor under the age of twenty one years, not being a widow or widower, shall be liable to imprisonment for two years.
ii. Consent
Under statutory marriage, parental consents of both the male and female parties is a legal requirement but only in cases where either or both of the parties are under the age of twenty one years. The Marriage Act is silent in relation to the consent of parties themselves but the Matrimonial Causes Act (MCA), 1970 provides for the ‘real consent’ of the parties, that is, consent obtained without ‘duress or fraud’.
iii. Subsisting Marriage
Parties will lack the capacity to embark on a statutory marriage if either of them is already married under the Act to another person and the marriage has not been dissolved by any court of law. Also, section 33 (1) of the Marriage Act 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 other person other than the person with whom such marriage is had. It is therefore clear that unless the Registrar is satisfied that there is no subsisting statutory or customary law marriage on the part of any of the parties wishing to marry under the Act, he shall not issue them with a certificate to marry under the Act.
iv. Kindred and Affinity
Persons intending to get married must ensure that there is no impediment of kindred or affinity between them. The list of prohibited degrees of consanguinity and affinity applies to statutory marriages and it is provided in Schedule 1of the MCA. A Registrar will not issue a certificate to marry unless he is satisfied by reason of a sworn affidavit by the parties that there is no such impediment. A marriage between two persons who are within the prohibited degree of consanguinity or affinity is void. Under section 4 of the MCA, where persons are within the prohibited degrees of affinity and desire to marry, they may apply in writing to a Judge for permission to do so and if the Judge is satisfied that there are exceptional circumstances, the Judge may by an order permit the parties to marry one another.
Marriage under the Marriage Act may be celebrated in any licensed place of worship by any recognized Minister of the church, however before the Minister of the church celebrates the marriage, the couple shall have delivered to him the certificate of the Registrar of Marriages or the Registrar’s license authorizing such marriage. Alternatively, the couple may decide to celebrate their marriage in the Registry before a duly licensed Registrar appointed pursuant to the provisions of the Marriage Act.
1.4.2 Customary Marriage
Generally the following are pre-requisites for a valid customary marriage:
i. Betrothal
When the families concerned are convinced that there are no facts that could hinder the marriage, the betrothal, which is the formal engagement of the parties will now take place. The engagement usually consists of a formal process of agreement to marry between the prospective spouses, the giving of consents by their parents or guardians and the giving of gifts (in money and/or kind) by the man to the woman and her family. After the betrothal then actual marriage takes place.
ii. Capacity of the parties
Most of the customary laws in Nigeria do not prescribe any age for the solemnization of customary-law marriage. This lacuna in the rule of customary law has to a large extent encouraged a high incidence of child marriage, with all its attendant evils. In some areas, child betrothal is rampant but marriage does not in fact take place until the parties have attained the age of puberty. There is no doubt that there were a lot of child marriages under customary law because there was no law against child marriage (most of which occur in the northern part of the country) but since the passing of the Child’s Rights Act 2003, no marriage of persons below the age of eighteen is allowed under Nigerian Law.
iii. Consent of the parties and parents
The intending couple has to give their consent to a customary marriage. The Supreme Court in the case of Osamwonyi v. Osamwonyi, held that under Bini Native Law and Customs, the consent of the parties was necessary for a valid marriage under customary law. Parental consent is also necessary before a valid customary marriage can take place. In Okpanum v. Okpanum, the High Court of East Central State of Nigeria held that in order to constitute a valid customary marriage, there must be parental consent and mutual agreement between the parties. Furthermore, under section 361 of the Criminal Code Act, it is an offence punishable with seven years imprisonment for any person who with the intent to marry a female person of any age or to cause her to be married by any other person takes her away or detains her against her will.
iv. Marriage consideration/bride price
Marriage consideration otherwise called bride price is one of the essential requirements of a valid customary marriage. The bride price includes any gift or payment in the form of money, natural produce or any kind of property given by an intending husband and his family to the parents or guardian of a female person on account of the marriage.
v. Solemnization of the marriage
Solemnization or celebration is an essential ingredient of a valid customary law marriage. It generally involves breaking kola, pouring libation, sharing drinks and other activities. The bride is invariably handed over to the bridegroom and his family. In the case of Omoga v. Badejo, the Court held that there must be a formal handing over of the bride to the groom in the presence of the two families and witnesses and the acceptance and taking away of the bride to her husband’s house for marriage under Yoruba Native Law and Custom, to be valid.
vi. Consummation of the marriage
Consummation of the marriage under Native Law and Custom is essential. Consummation simply means having sex, with a view to making a marriage complete. In traditional societies, the very night of the marriage is eagerly awaited by the groom’s family as he is expected to announce his exploits to his family and state if his wife was found intact or not.
1.4.3 Islamic Marriage
The principal requirements of a valid Islamic law marriage are:
i. Consent of the parties
The parties to Islamic law marriage must freely consent to the union. However, under the Maliki School of Islamic Law, a father has the right to conclude a marriage on behalf of his infant sons and virgin girls. The ceremony is called the Ijbar. The exercise of this right may be ameliorated by the fact that the child has the option to repudiate the marriage contract on the attainment of the age of puberty. However, a father loses his right of Ijbar where he allows his daughter to choose a husband from among her suitors.
ii. Parental consent
As in other systems of customary law, parental consent is necessary for the valid celebration of marriage under Islamic law.
iii. Payment of the Saduquat
Saduquat (Sadaki) or dower is the bride price received by the parents of the bride to be. It is the entitlement of the woman and not that of her parents, though it is paid through the parents.
iv. Solemnization
The marriage needs to be solemnized by a Mallam in the presence of at least two upright Moslem witnesses.
.