In Nigeria, the concept of Double Decker Marriage has evolved and it is evolving. Most couples in Nigeria celebrate both statutory marriage and customary or traditional marriage simultaneously. When this is done, the contraction of both marriages will result in a double-decker marriage.
Hence, this article seeks to educate the reader on the following:
- Definition of marriage;
- Types of marriage;
- Concept of Double- Decker marriage; and,
- The distinction between Double-Decker marriage and bigamy.
1. WHAT IS MARRIAGE
In Hyde vs. Hyde (1866) LR 1 P&D, Lord Penzance defined marriage as
"...the voluntary union for life of one man and one woman to the exclusion of all others".
Thus, marriage is the legal status, condition, or relation of one man and one woman united in law for life or until divorced.
2. TYPES OF MARRIAGE
There are two types of marriages namely, the statutory marriage and the customary marriage (which includes Islamic marriage).
- Statutory marriage is often referred to as a monogamous
marriage. Monogamous marriage has been given a classical definition
by Lord Penzance in Hyde v. Hyde Supra as
"....the voluntary union for life of one man and
one woman to the exclusion of all others".
Section2 (1) of the Matrimonial Causes Act, confers jurisdiction to entertain statutory matrimonial causes on the high court of every state in the federation.
- Customary Marriage is also known as Traditional Marriage. It is
the marriage according to the Custom or Native Law of a particular
society which could be the custom of the bride's community or
ethnic group where the Customary Marriage is observed.
Customary marriage can also be referred to as a polygamous marriage. A customary marriage has jurisdiction to hear and determine matters relating to a Customary Court.
3. CONCEPT OF DOUBLE-DECKER MARRIAGE
Double-decker marriage is used to describe the union of two marriage ceremonies by a man and a woman (i.e. a statutory marriage and a customary marriage by one man and one woman; becoming husband and wife under both native laws and the Act).
Double-decker marriage is a marriage that has the traits of a Customary marriage and Statutory marriage. All essential requirements for a valid customary marriage and statutory marriage are all present in the double-decker marriage.
It is simply a marriage that involves the solemnization of marriage under one system of law (customary law) and subsequent marriage (statutory marriage) by the same couple (man and woman) is a double-decker marriage.
Section 33(1) of the Marriage Act provides that:
"No marriage in Nigeria shall be valid where either of the parties ...... at the time of the celebration of such marriage is married under customary law to any person other than the person with whom such marriage is had".
Also, Section 35 of the Marriage Act provides that:
"Any person who is married under this Act, or whose marriage is declared by this Act to be valid, shall be incapable, during the continuance of such marriage, of contracting a valid marriage under Customary law; but, save as aforesaid, nothing in this Act contained shall affect the validity of any marriage contracted under or by any customary law, or any manner apply to marriages so contracted"
Furthermore, Section 47 of the Marriage Act provides that:
"Whoever, having contracted marriage under this Act, or any modification or re-enactment thereof, or under any enactment repealed by this Act during the continuance of such marriage (and)contracts a marriage by customary law shall be liable to imprisonment for five years".
This provision expressly allows the validity of both the customary marriage earlier conducted by the parties and the statutory marriage subsequently contracted by the same couple.
Notwithstanding the above legal protections for the practice of double-decker marriage, it is noteworthy that an acceptable double-decker marriage has its order. The customary marriage must precede that statutory marriage. The proceedings for the two marriages must not be held simultaneously or about the same time or thereafter.
4. IS A DOUBLE-DECKER THE SAME AS BIGAMY
The answer is negative. Double-decker marriage is used to describe the union of a man and a woman becoming husband and wife under both native laws and the Act.
On the other hand, Bigamy is defined by The Black's Law Dictionary as 'the act of marrying one person while still legally married to another.
Bigamy is generally a criminal offense, and it is governed by the Criminal Code of various southern states in Nigeria and the Penal Code of various northern states in Nigeria. Section 370 of the Criminal Code Act states thus:
"Any person who, having a husband or wife living, marries in any case in which such marriage is void because of its taking place during the life of such husband or wife is guilty of a felony and is liable to imprisonment for seven years.
It is worthy to note that this offence of Bigamy is only applicable in Statutory Marriage i.e under the Act. Hence, marriages conducted under Customary laws cannot amount to bigamy except in a situation where a person married under the Customary Law decides to marry another person under the Marriage Act.
Double-decker marriage is not specifically defined by law. It is the co-existence of two validly recognized marriage systems in union viz customary and statutory contracted by the same couples.
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.