Nullity Of Marriage

By Chioma Angela Okeke

Nullity of marriage is a declaration by a court of competent jurisdiction that a supposedly existing marriage is null and void, and that no valid marriage exists between a man and a woman. There are two heads of nullity of marriage recognized under the Matrimonial Causes Act Cap M7 Laws of the Federation of Nigeria 2004 (MCA); nullity of voidable marriage and nullity of void marriage.

Nullity of voidable marriage

A voidable marriage is one that can be voided at the instance of either of the parties. This means that the marriage remains valid until it is set aside. The grounds upon which a marriage will be voided are provided under section 5 of the MCA. They are as follows:

That at the time of marriage-

1. That either party to the marriage is incapable of consummating the marriage. This means that the party in question is impotent and therefore incapable of having normal sexual relations. However, the court will not void such a marriage if the petitioner was aware of the incapacity at the time of contracting the marriage, or if the court is not satisfied that the incapacity to consummate the marriage also existed at the time of filing the petition for nullity. Sections Section 5 (1) (a); 35(a); 36(1) MCA.

In addition, the court shall not order for decree of nullity unless, it is satisfied that the incapacity is not curable; that the respondent has refused to submit to such medical examination as the court considers necessary for the purpose of determining whether the incapacity is curable; or that the respondent refused to submit to proper treatment for the purpose of curing the incapacity; and that in the particular circumstances of the case, it will be harsh and oppressive to the respondent, or contrary to the public interest, to make such a decree. Section 36(1) & (2)

2. That either party to the marriage is of unsound mind, or mentally defective, or is subject to recurrent attacks of insanity or epilepsy. The court shall not order for decree of nullity in this instance, unless the petitioner was at the time of the marriage, ignorant of the facts constituting the ground; the petition was filed not later than twelve months after the date of the marriage; and marital intercourse has not taken place with the consent of the petitioner since the petitioner discovered the existence of the facts constituting the ground. Sections 5(1) (b) & 37 MCA.
   3. That either party to the marriage is suffering from a venereal disease in a communicable form. Section 5(1) (c) MCA. A venereal disease is a sexually transmitted disease. Example, HIV/AIDS, Gonorrhea, Syphilis etc.
3. The wife is pregnant by a person other than the husband. Section 5(1) (c) MCA. The wife cannot file for nullity under this ground since she is the guilty party.

The Effect of a Decree of nullity of a voidable marriage

A decree of nullity of a voidable marriage shall annul the marriage from and including the date on which the decree becomes absolute. However, such a decree shall not render illegitimate a child of the parties born since, or legitimated during, the marriage.

Nullity of void marriage

A void marriage is unlawful and invalid ab initio. It does not require any formalities to terminate it. The grounds upon which a marriage will be voided are provided under section 3 of the MCA. They are as follows:

1. That either of the parties is, at the time of the marriage, lawfully married to some other person. This means that a party should not marry another person during the subsisting of his/her marriage either under the Marriage Act or any customary law. This is because the marriage to another when the marriage is subsisting will constitute bigamy, which attracts 5years imprisonment. Section 39 Matrimonial Causes Act Cap M6 Laws of the Federation of Nigeria 2004 (MA).
2. That the parties are within the prohibited degrees of consanguinity or, subject to section 4 of MCA, of affinity. Consanguinity relates to relationships by reason of blood relations (ancestors/ descendants). For example- sister or brother, father’s sister or brother, mother’s sister or brother, brother’s daughter or son, sister’s daughter or son. Affinity relates to relationships by reason of marriage. For example- wife’s mother or husband’s father, wife’s grandmother or husband’s grandfather, wife’s daughter or husband’s son etc.
   However, where two persons who are within the prohibited degrees of affinity wish to marry, they may apply, in writing, to a judge for permission, and if the judge is satisfied that the circumstances of the particular case are so exceptional as to justify the granting of the permission sought, the court may, by order, permit the applicants to marry one another.

3. The marriage is not a valid marriage under the law of the place where the marriage takes place, by reason of a failure to comply with the requirements of the law of that place with respect to the form of solemnisation of marriages. Section 3(1)(c) MCA. There are generally, two places recognised for solemnisation
of marriages under the MA- The marriage registry and a licensed place of worship.

A marriage shall be null and void if both parties knowingly and willfully celebrate a marriage in any place other than in any of the two places recognised under the MA, except where authorised by the licence issued by the Minister; or solemnizes the marriage under a false name or names or without a registrar’s certificate of notice or licence issued under section 13MA; or by a person not being a recognised minister of some religious denomination or body or a registrar of marriages. Section 33 MA.

4. The consent of either of the parties is not a real consent because, it was obtained by duress or fraud; or  that party is mistaken as to identity of the other party, or as to the nature of the ceremony performed; or that party is mentally incapable of understanding the nature of the marriage contract.
5. That either of the parties is not of marriageable age. The Child’s Right Act 2003 provides that a child means ‘a person under the age of eighteen years’. Section 277. However, the implication of sections 11(1) (b), 18 and 48 MA, seem to show that the marriageable age in Nigeria is twenty-one years. Thus, if either of the parties is under twenty- one years, the consent of the father or (if dead, of unsound mind or absent from Nigeria), of  the mother or (if both are dead, of unsound mind or absent from Nigeria), of the guardian must be produced. In the absence of parent or guardian of such party residing in Nigeria and capable of consenting to the marriage, then, a governor, a judge of the High Court of the State or of the FCT, or any officer of or above the grade of assistant secretary. Section 20 MA.

Chioma Angela Okeke, LLM(UK), MBA(Nig).