An annulment of marriage in Nigeria is a process by which a party to a statutory marriage seeks to completely nullify such a marriage based on the fact that the marriage is void or voidable in accordance with the provisions of the statutes, specifically the Marriage Act and the Matrimonial Causes Act.
In the case of a void marriage, the court decree is not important to bring the marriage to an end because the parties were never husband and wife in the face of the law in the first instance. Nevertheless, in order to remove any iota of doubt, a decree that simply declares the existing fact that there has never been a marriage may be obtained in respect of a void marriage.
The distinction between void and voidable Marriages was stated by Lord Green in the case of De Reneville V.De Reneville (1949) Page 100,111 (C.A.) thus:
"A void marriage is one that will be regarded by every court in any case in which the existence of the 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 marriage is one that will be regarded by every court as a valid subsisting marriage until a Decree annulling it has been pronounced by a Court of competent jurisdiction."
The annulment of marriage in Nigeria may be asserted by any person but where the marriage is voidable only one of the spouses can do so because until it is annulled the marriage is valid.
The principal law governing the matrimonial matters in Nigeria is the Matrimonial Causes Act, 1978 (the Act).
The annulment of marriage is completely different from a divorce. Some of the distinctions between an annulment of marriage and dissolution of marriage will be briefly highlighted below:
ANNULMENT Vs. DIVORCE
- Annulment or nullity of marriage could be distinguished from the dissolution of marriage in that, in the case of nullity of marriage, the marriage is invalid ab initio or voidable at the instance of one party, while for the dissolution of marriage, the marriage is brought to an end because the marriage has broken down irretrievably.
- A petition for an annulment of void marriage can be filed at any time and that of voidable marriage can be filed one year after the marriage based on some grounds, a petition for a divorce cannot be filed when the marriage is less than two years except with the leave (permission) of the court.
- The petition for annulment of marriage can only be filed based on limited instances or reasons stipulated in the statutes, but the divorce petition can be filed under the extended fact of "intolerable behaviours" among other reasons.
- Only parties to a marriage can file for a petition for dissolution of marriage, but the petition for nullity or annulment of marriage can be filed by any interested third party whose legal interest may be affected by such a marriage.
- When a marriage has been annulled, the couple becomes single again as if they have never married before, but after a divorce, the couple will become divorcees.
GROUNDS ON WHICH MARRIAGE MAY BE VOID
According to Section 3 of the Act, the grounds on which a marriage celebrated after the commencement of the Act may be void ab initio are set out as follows:
- EXISTING LAWFUL MARRIAGE
Where either of the parties to a marriage is at the time of the marriage lawfully married to another person such marriage will be null and void. Even where a customary law marriage precedes a statutory marriage with a different person, the marriage will still be null and void.
Section 33 (1) Matrimonial Causes Act 1970 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 person other than the person with whom such marriage is had."
The marriage under this subsection must be proved with a high degree of certainty to invalidate the marriage on the ground of a previous marriage under customary law.
It is noteworthy that where parties to a subsisting customary marriage contract a subsequent statutory marriage, the marriage shall not be void.
- PROHIBITED DEGREES OF CONSANGUINITY OR AFFINITY
Where a marriage celebrated by parties is within prohibited degrees of consanguinity or affinity the marriage will be void.
Consanguinity is a marriage contracted between parties who are related by blood, while affinity is the marriage of a man with a person to whom he is related through marriage.
The prohibited degrees of marriage were dealt with in Section 3, First Schedule and Section 115(1) of the Matrimonial Causes Act 1970.
Nonetheless, by Section 4 Matrimonial Causes Act 1970, in some circumstances, it may be possible for a person within the prohibited degrees of affinity to marry each other with the consent of a High Court Judge.
- INVALIDITY BY THE LEX LOCI CELEBRATIONIS (LAW OF THE PLACE OF CELEBRATION).
An annulment of marriage in Nigeria under a void marriage can e by reason of failure with the form prescribed by the lex loci celebrationis. This provided for by Section 3 (1) (c) of the Matrimonial Causes Act 1970.
By the provision Section 33(2) Matrimonial Act 1914:
'A marriage shall be null and void if both partied knowingly and wilfully Acquiesce in it celebration' without compliance with some formalities prescribed by the Act".
A marriage is void under this provision if it is clearly shown that both parties to the marriage had knowledge of the defect in the formalities but willfully agreed to its celebration.'
For a marriage to be void under this sub-heading the following must be considered:
- Place of celebration
By Section 33(2) (a) of the Matrimonial Act 1914, a marriage contracted under the Marriage Act must be celebrated in a Registrar's office or a Licence place of worship or a place prescribed in a Special Licence. Any marriage celebrated in any other place than this will be void ab initio.
- Celebration of Marriage under false name or names
- Celebration without a Certificate or a Special Licence
- Marriage not celebrated by a minister of a religion or a Registrar of marriage.
A marriage under the Act must be celebrated either by a recognized minister of some religious denomination or body or by a Registrar of marriages. Failure to comply with the requirement makes the marriage void ab initio.
- LACK OF CONSENT
Where neither of the parties to marriage consents freely to the union, the marriage is invalidated.
The following factors negate a party's consent to a marriage:
- I. Fraud or Duress
Fraud is where there is dishonest misrepresentation by a party to the marriage by which the consent of the other was obtained, while duress is when a party to the marriage is compelled to contract such marriage by creating a state of fear or apprehension, which prevented the party from freely consenting to the marriage. Where consent is proved to have been obtained by fraud or duress, the marriage is annulled not because of the presence of fraud or duress but because of the absence of consent.
- II. Mistake
By virtue of Section 3 (1) (d) of the Matrimonial Causes Act 1970, where the consent of a party to the marriage is not a real consent because that party is mistaken as to the identity of the other party or as to the nature of the marriage performed. The mistake of that party will make the marriage void ab initio. It is not every type of mistake that will invalidate a marriage. If a party voluntarily marries the other party thinking that the marriage is full of fortune and it turns out after marriage that the other party is a debtor, the marriage will not be declared invalid simply because of that reason. The second part of the mistake contained in Section 3 (1) (d) (ii) of the Matrimonial Causes Act 1970, is one as to the nature of the marriage ceremony performed between the parties.
- III. Insanity
Where the consent of one of the parties is not real because that party is mentally incapable of understanding the nature of the marriage contracted, the marriage is null and void.
- MARRIAGEABLE AGE
Under section 3 (1) (e) of the Matrimonial Causes Act 1970, If either of the parties is not of marriageable age the marriage is null and void. The Marriage Act of 1914 or The Matrimonial Causes Act 1970 did not prescribe any marriage age.
Under the Child Rights Act and Child Rights Law of many states in Nigeria, a person up to 18 years of age is considered to be an adult and of marriageable age.
Unlike a void marriage, which is void ab initio, voidable marriage can only become void at the instance of one of the parties to the marriage. In a voidable marriage, only the court can pronounce that the marriage is void and subsequently nullify it.
While any interested party may bring a petition for a void marriage upon the death of one of the parties to the marriage, if a marriage is voidable, it cannot be questioned by any third party because the marriage was valid till the death of the other spouse and subsisting marriage. The other spouse is entitled to all the rights of a widow/widower.
GROUNDS ON WHICH MARRIAGE IS VOIDABLE
- Incapacity to Consummate Marriage
Where either of the parties to a marriage is incapable of consummating the marriage by virtue of Section 5 (1) (a) of the Matrimonial Causes Act 1970, that is one of the parties is impotent the marriage is voidable.
Impotency is different from Sterility in that the latter refers to the incapacity to procreate children while the formal is one who is incapable of having normal sexual relations. Where sexual relations are partial or imperfect there will be no consummation. The use of contraception or the practice of coitus interuptus amount to consummation as it was held in the case of Baxter V. Baxter (1948) A.C.274
It is noteworthy that to make a marriage voidable the incapacity to consummate must exist both at the time of the marriage and the hearing of the Petition. Before a marriage is declared voidable on the ground of incapacity to consummate, the Court must be satisfied that the defect is not curable; that is it cannot be cured by medical treatment.
- Unsoundness of Mind, Mental Disorder and Epilepsy
Under section 5 (1) (b) of the Act, a marriage is voidable if at the time of its celebration one of the parties was of unsound mind or a mental defective, or subject to recurrent attacks of insanity or epilepsy.
If any of this mental deficiency arose only after the marriage it will not void the marriage.
The unsoundness of mind need not be absolute idiocy but could be a weakness of understanding.
A spouse who is of unsound mind or mental defect is regarded by the law as being incapable of carrying on a normal marital life. The other party to the marriage is allowed to petition for the nullity of the marriage. Where a spouse is at the time of the marriage subject to recurrent attacks of insanity or epilepsy, the marriage will be voidable. The marriage will not be declared voidable at the petition of the party suffering from mental deficiency or epilepsy.
- Venereal Disease
According to Section 5 (1) (c) of the Matrimonial Causes Act 1970, the marriage is voidable where at the time of its celebration either party was suffering from a venereal disease in a communicable form. If it cannot be shown that the party in question was suffering from the disease at the time of the marriage, the disease would not constitute a ground for nullity.
The party alleging the venereal disease in communicable form may prove it in various ways including the calling of medical evidence.
- Pregnancy of the Wife by a Person Other Than the Husband
By section 5 (1) (d) of the Act, where at the time the marriage was celebrated the wife was pregnant by a person other than the husband, the marriage will be voidable at the instance of the husband.
By virtue of Section 35 (c) of the Act, the wife so pregnant cannot obtain a decree of nullity on the ground of her pregnancy. But where the petitioner had knowledge of the pregnancy at the time of the marriage as this would amount to an approbation of that.
More so, the Court will refuse a decree where the petitioner with full knowledge of the fact and without just cause allows his right to lapse.
RESTRICTIONS IN RESPECT OF THE GROUNDS IN SECTIONS 5 (B) (C) OR (D) OF THE MATRIMONIAL CAUSES ACT 1970.
By virtue of Section 37 of the Matrimonial Causes Act 1970, three further restrictions are imposed on the granting of a decree of nullity in respect of marriages which are voidable by reason of insanity, venerable disease or pregnancy at the time of marriage.
- By virtue of Section 37 (a) of the Matrimonial Causes Act 1970, no decree of nullity can be made on any of the above grounds except the Court is satisfied that the petitioner was at the time of the marriage ignorant of the fact constituting the ground.
- Under Section 37 (b) of the Act, in order to obtain a decree of nullity, it must be shown that the petition was filed not later than 12 twelve months from the date of marriage.
- According to Section 37 (c) of the Act, for the decree of nullity to be granted, it has to be proved that marital intercourse has not taken place with the consent of the petitioner since he discovered the existence of the facts constituting the ground.
EFFECT OF DECREE OF NULLITY OF VOIDABLE MARRIAGE
By section 38 of the Act, a decree of nullity of a voidable marriage shall annul the marriage from and including the date on which the decree becomes absolute.
However, a decree of nullity of a voidable marriage shall not render illegitimate a child of the parties born since or legitimated during the marriage.
In conclusion, the existence of a marriage must be strictly proved in proceedings for annulment of marriage in Nigeria.
More so, the decree for annulment of marriage under Nigerian law can only be granted to any petitioner who can establish any of the grounds for void or voidable marriage stipulated in the Act.
A party to a marriage who intends to end such a marriage without meeting the above strict requirements for annulment of marriage may opt for divorce since there are several grounds for divorce compared to the nullity of marriage.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.