Chapter one

Introduction

Background to study

The distinction between void and voidable marriages arose in cases where property was the main issue and as a result of conflicts of jurisdiction between ecclesiastical and temporal courts. If the marriage could be civilly attacked after the death of one of the spouses, then it had been a void marriage; if it could not be attacked, even though canonically invalid, the marriage was voidable but not avoided. Property cases were usually handled by temporal courts, where' as cases involving the validity of the marriage were heard in ecclesiastical courts. However, after the Reformation property and relational aspects of marriage were no longer heard separately[1].

Statutory marriage otherwise known as marriage under the Act. It is governed by the Matrimonial Causes Act and the Matrimonial Causes Rules. By its nature, it is monogamous and not otherwise. According to

Efevwerhan (2007)[2]:

“This is marriage solemnized in accordance with the marriage Act, 1949, as amended by the marriage (Registers General License) Act, 1970. This is preceded by the publication of the notice of marriages, a certificate of notice issued by the Registrar, and then the solemnization of the marriage in the register‟s office.”

A petition for annulment of statutory marriage in Nigeria is one by which a party to the statutory marriage seeks to establish that due to some defects, the statutory marriage has become invalidated, and hence null and void.

Annulment of statutory marriage is completely different from dissolution of statutory marriage. The grounds and process of how to annul a statutory marriage is different from how to get a divorce in Nigeria.

Nullity of statutory marriage could be distinguished from dissolution of statutory marriage in that, in the case of nullity of statutory marriage, the statutory marriage is invalid ab initio, while in dissolution of statutory marriage the statutory marriage is brought to an end because of matrimonial offences stated in the Matrimonial Causes Act.

By virtue of Section 2 (2) Matrimonial Causes Act 1970, a person may institute a matrimonial cause under this Act in the High Court of any state of the Federation for proceeding for a decree[3]…

2(2) (b) of nullity of a voidable statutory marriage;

2(2) (c) of nullity of a void statutory marriage;

Where a statutory marriage is invalid it may be void or voidable. A void statutory marriage is the type of statutory marriage that has never been in existence. A voidable statutory marriage on the other hand is the type of statutory marriage that is good while subsisting but may be annulled at the instance of one or both parties due to some existing defect.

In the case of a void statutory marriage, the Court decree is not necessary to bring the statutory marriage to an end because the parties were never husband and wife in the first instance.

Nevertheless, in order to remove any iota of doubt a decree that simply declares the existing act that there has never been a statutory marriage may be obtained in respect of a void statutory marriage.

Distinction between Void and Voidable Statutory marriages was stated by Lord Green In the case of De Reneville V.De Reneville[4] thus:

“A void statutory marriage is one that will be regarded by every court in any case in which the existence of the statutory marriage is in issue as never having taken place and can be so treated by both parties to it without the necessity of any Decree annulling it; A voidable statutory marriage is on e that will be regarded by every court as a valid subsisting statutory marriage until a Decree annulling it has been pronounced by a Court of competent jurisdiction.[5]”

Invalidity of a Void statutory marriage may be asserted by any person but where the statutory marriage is voidable only one of the Spouses can do so, because until it is annulled the statutory marriage is valid.

Objective of the study

It is against this backdrop that this paper examines the phenomenon of Nulity of Statutory Marriages in Nigeria with a view to situating its strategic grounds nd conditions for the validity of this marriage type while discussing the features of other traditional marriage types.

Scope of the Study

The enormity of the subject matter has led to the selection of some aspects of Nigerian constitution. In general, reference is made to statutory marriage act in  the 1999 Constitution of the Federal Republic of Nigeria

Research Methodology

This research methodology is normative or doctrinal research (library research). Normative legal research is the legal researches which use the law as foundation of norm. The norm system in question is related to principle, norm, and rule from legislation, verdict, treaties, and doctrine concerned annulment of an arbitration award.[6] First stage of normative research comprises a research with purposes to achieve objective law, by conducting research on legal issues. The second stage of normative legal research is aimed at obtaining subjective law (rights and obligations).[7] It also concerns with critical review of legislation and of decisional processes and their underlying policy

Literature review

Annulment is a court decision that the marriage contained some legal flaw (coercion, fraud, unwillingness to consummate union, non age, bigamy etc). Nimkoff (1947) defines annulment as “a legal action that invalidates the marriage on the ground that it never legally existed and should not have occurred”. When a judge issues an annulment decree his purpose is to return the couple to their previous status, with their pre-existing rights, re-established, as if the marriage had not taken place. Annulment is a judicial declaration that no valid marriage ever existed between the parties in question. In the United States, the most common grounds for annulment are mental incapacity, force, affinity, impotency, conviction of a felony and prior undisclosed marriage.

 The grounds of annulment were determined by Church authority and applied in ecclesiastical courts. Annulment was for Canonical causes of impediment existing at the time of the marriage. The Church held that the sacrament of marriage produced one person from two, inseparable from each other. “By marriage the husband and wife are one person in law, that is the very being of legal existence of the woman is suspended during the marriage or at least incorporated and consolidated into that of the husband: under whose wing, protection and cover, she performs everything” (Black stone 1984).

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