The Concept of 'Double-Decker' Marriages in Nigeria

The purpose of this article is to examine and analyse the concept of “double-decker” marriages in Nigeria and to determine if there is in law, a double-decker marriage.

There are broadly two types of marriage in Nigeria: the statutory marriage and the customary (which includes Islamic) marriage.

The statutory marriage is a monogamous one. The customary marriage can either be potentially or actually polygamous. The High Court has exclusive jurisdiction to terminate a statutory marriage. A customary marriage will be terminated in a Customary Court.

Many people in Southern Nigeria undergo through the customary marriage and the statutory marriage. The typical scenario will be where Titus marries Rebecca under customary law in July 1999 and in August 1999 they contract a statutory marriage under the Marriage Act (the Act). On the face of it, both marriages are valid. However, the following potential problems may arise:

• When can it be said that the couple got married? Was it in July 1999 or in August 1999? Can they be said to have been married twice to each other in July 1999 and in August 1999?
• Can Titus marry Jane under customary law whilst his marriage to Rebecca is still subsisting?
• In relation to divorce, will the dissolution of one marriage be sufficient to dissolve both marriages or will each marriage have to be dissolved separately?

It is said that the phrase “double-decker” marriage was coined by Margaret Onoka in her book ‘Family Law (Spectrum Books Limited)’ page 143. In her book she describes a ‘double-decker’ as a type of marriage that ‘involves the celebration by the same couple, of a marriage under one system and their subsequent marriage under another system..’

The two rival theories:

There are two main theories in relation to the ‘double-decker’ marriage. One theory is the ‘Conversion’ theory. The other theory is the ‘Co-existence’ theory.

The Conversion theory

This theory is that in the example of Titus and Rebecca, the statutory marriage of August 1999 will convert the customary marriage of July 1999 into a statutory marriage. Thus, the customary marriage will disappear. The couple’s marital status will henceforth be governed solely by the Marriage Act. According to this theory, the two marriages cannot co-exist. The customary marriage merges into the statutory marriage. The status of marriage between the parties has to be dissolved in the High Court. Once a decree of dissolution of the statutory marriage is pronounced in the High Court, the customary marriage is equally automatically dissolved. A Customary Court cannot dissolve the marital status between the couple. Whilst the marriage is subsisting, Titus cannot marry Jane under customary law.

At page 831 of his book ‘Nigerian Family Law’, Professor Itse Sagay states as follows: “…What however is the effect of a customary marriage, followed by a statutory marriage between the same parties? The weight of authority is of the view that the customary marriage is converted into a statutory marriage. In other words, the statutory marriage assimilates the customary marriage, eliminates all its incidents and substitutes its own incidents. Thus in Oseni v. Oseni and Oshadiya, Dosunmu, J. held that a later statutory marriage supersedes an earlier customary marriage, by the same parties. However, there is also a minority view to the effect that the statutory marriage does not supersede the customary marriage, but continues to co-exist with it side by side. This view is exemplified by Agbakoba J, in Akparanta v. Akparanta where he stated that statutory marriage is merely superimposed on a customary marriage. The latter is not extinguished, but co-exists with the former and the termination of the statutory marriage would not affect the continued existence of the statutory marriage…”

At pages 66 and 67 of his book ‘Family Law in Nigeria (Revised Edition) by Heinemann Educational Books (Nigeria) Plc’ Professor E.I. Nwogugu states as follows: “It is a common practice in Nigeria for parties who intend to contract a statutory marriage to marry first under customary law before the solemnization of the statutory marriage. This practice may be explained by the fact that though Western civilization and Western culture have permeated Nigerian society, most people, even the most sophisticated, understandably regard themselves as bound by the customary law of their place of origin. The Nigerian Marriage Act has given validity to this practice by enabling persons who are married under customary law to marry each other under the statute……To answer the questions raised earlier, the correct position is that a subsequent statutory marriage supersedes a previous customary-law union…”

I will now examine two authorities that the exponents of this theory use to justify their view: (a) OHOCHUKWU –v- OHOCHUKWU [1960] 1 All E.R. 253, [1960] 1 W.L.R. 183; and (b) JADESIMI –v- OKOTIE-EBOH & 2 ORS [1996] 2 NWLR (pt. 429) 128.

OHOCHUKWU –v- OHOCHUKWU [1960] 1 All E.R. 253 was decided by Wrangham, J. at the Probate, Divorce and Admiralty Division of the High Court of Justice of England and Wales on 27^th October 1959. In this case, the parties were Nigerian Christians. They contracted a customary law marriage in Nigeria in 1949. This marriage was a valid marriage under Nigerian law and it was a potentially polygamous marriage. The parties subsequently came to England and on 24^th July 1953 they went through a second ceremony of marriage at the St. Pancras register office in London. They did this to enable the wife to produce a marriage certificate in England and not because they had any doubt about the validity of the Nigerian marriage. The wife then petitioned for divorce. Wrangham J said: “…In those circumstances, I have come to the conclusion that whatever might be the effect of the parties being Christians on the marriage for other purposes and in other courts, in this court and for this purpose the Nigerian marriage must be regarded as a polygamous marriage over which this court does not exercise jurisdiction. I, therefore, pronounce a decree nisi for the dissolution not of the Nigerian marriage but of the marriage in London. I am told that in fact that will be effective by Nigerian law as at present understood to dissolve the Nigerian marriage; but that forms no part of my judgment: that is for someone else to determine and not me…” [underlining mine].

OHOCHUKWU did not decide that the statutory marriage superseded the customary marriage. Wrangham, J. refused to dissolve the customary marriage because the English courts at that time lacked jurisdiction to dissolve a polygamous marriage. He did not decide the point that the dissolution of the statutory marriage was sufficient to dissolve the customary marriage. He left this point for someone else to decide.

JADESIMI –v- OKOTIE-EBOH & 2 ORS [1996] 2 NWLR (pt. 429) 128 was decided by the Supreme Court of Nigeria. In this case, the deceased, Chief Festus Okotie-Eboh, married the 1^st Respondent according to customary law in 1942. In 1947 the deceased made a Will. In 1961, whilst the customary marriage was subsisting, the deceased and the 1^st Respondent married under the Marriage Act at a Marriage Registry in Lagos. The issue was whether the Will of 1947 was revoked by the marriage of 1961 by virtue of section 18 of the English Wills Act, 1837, which is a statute of general application that is in force in Lagos. Section 18 of the Wills Act 1837 provides that every Will made by a man or a woman shall be revoked by his or her marriage. Section 45 of the Interpretation Act provides that statutes of general application that were in force in England on the 1^st day of January 1900 shall be in force in Lagos but that such imperial laws shall be in force so far only as the limits of local jurisdiction and local circumstances shall permit. In his lead judgment, Uwais, C.J.N. said as follows: “…It is a matter of common knowledge that most people in Nigeria who contract marriages under the Marriage Act, undergo a form of customary marriage earlier as a matter of practice and adherence to the custom of their forefathers……It is never intended by the practice that the marriage under the Marriage Act should nullify the customary marriage…but rather it would supplement the practice or custom. The parties are however aware that by applying the Marriage Act to their relationship, their marriage would become monogamous….In my opinion, therefore, the circumstances of Nigeria militate against the application of section 18 of the Wills Act, 1837 to nullify a will made prior to contracting a marriage under the Marriage Act…” This statement is contradictory. By saying that it is never intended by the practice of celebrating a subsequent statutory marriage, the said statutory marriage should nullify the earlier customary marriage, Uwais, CJN was suggesting that the earlier customary marriage is still valid. This is inconsistent with his statement that by marrying under the Marriage Act, the earlier customary marriage becomes monogamous. His decision could be explained on the basis that section 18 of the English Wills Act 1837 is subject to section 45 of the Interpretation Act and accordingly, for the purposes of section 18 of the Wills Act, 1837, the word ‘marriage’ does not include a statutory marriage that was contracted after the Will was made and after the same couple had previously contracted a customary marriage (prior to the Will being made).

In the JADESIMI –v- OKOTIE-EBOH case, Iguh JSC in his judgment said: “...In the first place, it cannot be disputed that pursuant to sections 11 and 47 of the Marriage Act…a man is permitted to marry thereunder a woman to whom he had been legally married under customary law and subsequently go through another marriage under the Marriage Act, the second marriage is clearly valid as a monogamous marriage. It is also plain that such second marriage under the Marriage Act, converts without doubt, the customary marriage that was “potentially polygamous” to a monogamous marriage….No doubt, under section 18 of the Wills Act, 1837 of England, the marriage, which can revoke or invalidate an existing Will of either of the parties, is a marriage within the English concept. This connotes a marriage between a man and a woman each of whom at the time of the marriage was unmarried or free to get married and therefore possessed the legal capacity to contract a lawful marriage. In my view however, the marriage contemplated under section 18 of the Wills Act, 1837 of England cannot conceivably include a subsequent marriage under the Marriage Act…between a man and a woman who are already validly married under customary law and living together as husband and wife before either of them made his last Will and Testament and after which the subsequent marriage under the Act was performed…. I also accept that had the testator not been lawfully married to the 1^st respondent as at the time the Will was made, the Wills Act, 1837 would have had full application and effect as envisaged by the British Parliament which enacted it. In view, however, of the fact that the testator was validly and lawfully married to the 1^st respondent under the prevailing local custom, tradition and law, even before the Will in issue was made by him, I cannot accept that the subsequent reaffirmation of his marriage to the 1^st respondent under the Marriage Act revoked his said Will….” His Lordship’s statement that the subsequent statutory marriage converted the earlier customary marriage into a monogamous marriage is contradicted by his subsequent statement that the testator was validly and lawfully married to the 1^st Respondent under customary law before the Will was made and accordingly, the subsequent reaffirmation of that marriage by the statutory marriage could not revoke the Will. It can therefore be said that his Lordship’s ratio is that the statutory marriage could not revoke the Will because it was just a reaffirmation of the earlier customary marriage. Thus, the statutory marriage was of no legal effect as the parties were already lawfully married to each other at the time they went through the statutory ceremony of marriage.

A recent interesting case is the English case of UDEZE-NWANNIA –v- UDEZE-NWANNIA [2013] EWCA Civ 725. This was a renewed application for permission to appeal to the Court of Appeal against a decree of nullity made in the Edmonton County Court in relation to the Applicant’s statutory marriage to the Respondent. It was declared void on the ground that the Applicant had a subsisting statutory marriage to one Mrs Angela Udeze when he contracted the marriage with the Respondent. In August 1988 the Applicant went through a customary marriage with Angela in Nigeria and subsequently contracted a statutory marriage with her in Kano, Nigeria. His case was that he dissolved the customary marriage with Angela extra-judicially before contracting a customary marriage and a subsequent statutory marriage with the Respondent in Benin City in Nigeria in 2006. His case was that this extra-judicial divorce of the customary marriage to Angela also dissolved his statutory marriage to her. In his judgment refusing the Applicant permission to appeal on the ground that the proposed appeal had no real prospect of success, Patten LJ said that he was perfectly prepared to accept for the purpose of that hearing that a valid customary divorce ceremony recognised under Nigerian customary law is effective to dissolve a purely customary marriage but he was not satisfied that there is any legal basis in Nigerian law for the proposition that a valid statutory marriage can be dissolved merely by a customary ceremony of divorce under Nigerian law. This judgment is an implied acceptance of the conversion theory.

The major difficulty with the conversion theory is the uncertainty of the status of the parties between the time they contracted the customary marriage and when the subsequent statutory marriage converted it into a statutory marriage. If Titus and Rebecca contracted a valid customary marriage in 1999 and then contracted a statutory marriage in 2008, according to this theory, in 2008 the statutory marriage then superseded the customary marriage and converted it into a statutory marriage. When can it then be said that the parties got married to each other? Was it in 1999 or in 2008? What then becomes the status of the parties between 1999 and 2008? Does it mean that they were unmarried to each other between 1999 and 2008? If there is a statute that confers a benefit on a person on the basis of the length of that person’s marriage, would it mean that the period before 2008 will be ignored? An Immigration statute might, for example confer on the wife the right to acquire the citizenship of her husband’s country, say after 3 years of being married to him. If in those circumstances, Rebecca were to apply for the citizenship of her husband’s country in 2009, could her application be rejected on the ground that she had not been married to Titus for a period of three years because she married Titus in 2008 and not in 1999?

The Act does not expressly say that the subsequent statutory marriage converts the earlier customary marriage into a statutory marriage.

The Co-existence theory

The position of those who propound this theory is that both marriages co-exist. Thus the dissolution of the statutory marriage in the High Court still leaves the earlier customary marriage valid and subsisting. Thus, the customary marriage will continue to exist until it is dissolved in a Customary Court or extra-judicially. Support for this theory can be found in the cases of AKPARANTA –v- APKARANTA (1972) E.C.S.N.L.R. 779 and AFONNE -v- AFONNE (1975) E.C.S.N.L.R. 159. Further support for this view can be found in the Act.

Section 33 (1) of the 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 under customary law to any person other than the person with whom such marriage is had. Thus, the subsequent statutory marriage between Titus and Rebecca will be valid by virtue of this section.

Section 35 of the Act provides that any person who is married under the Act shall be incapable, during the continuance of such marriage, of contracting a valid marriage under customary law, but, save as aforesaid, nothing in the Act contained shall affect the validity of any marriage contracted under or in accordance with any customary law, or in any manner apply to marriages so contracted.

Section 47 of the Act provides that whoever, having contracted a marriage under the Act, during the continuance of such marriage contracts a marriage in accordance with customary law shall be liable to imprisonment for five years.

• By virtue of section 33 (1), because the July 1999 customary marriage was between Titus and Rebecca, the August 1999 statutory marriage between them is valid;
• By virtue of section 35, if Titus and Rebecca had first contracted a statutory marriage and not a customary marriage in July 1999, both of them will be incapable of contracting a customary marriage with each other after the statutory marriage;
• By virtue of section 47 if Titus and Rebecca had first contracted a statutory marriage and not a customary marriage in July 1999, both of them would be guilty of a criminal offence if they contracted a customary marriage between each other in August 1999. Furthermore, if Titus marries Jane under customary law whilst his statutory marriage to Rebecca is still subsisting, Titus will be committing a criminal offence;
• By virtue of section 35, because the July 1999 customary marriage between Titus and Rebecca was prior to the August 1999 statutory marriage between them, the July 1999 customary marriage is still valid.

The position appears to be that the subsequent statutory marriage between Titus and Rebecca prevents each of them from contracting a further customary marriage with each other and with third parties. Thus, there hitherto potentially polygamous marital status has now become monogamous. However, their earlier customary marriage is still valid. Thus, after the dissolution of the statutory marriage in the High Court, the customary marriage will still have to be dissolved in the Customary Court or extra-judicially. This will be lead to practical difficulties. It will require the parties to dissolve each marriage separately. A couple who dissolve their statutory marriage without dissolving their customary marriage might still be regarded as being married at the time of the death of one spouse. Thus, if the deceased spouse died intestate, the surviving spouse might still want a share of his or her estate as a surviving spouse, notwithstanding that the statutory marriage had been dissolved before the death of the deceased spouse.

A third theory:

The subsequent statutory marriage is of no legal effect.

A third possible theory is that the subsequent statutory marriage is of no legal effect whatever.

In ASIATA -v- GONCALLO (1900) N.L.R. 41, Alli Elese, a Yoruba, was taken to Brazil as a slave. There he married Selia, an African freed woman. They were married first in accordance with Muslim rites, and then in accordance with Christian rites in a Christian church in Brazil. There were two children of the marriage. Subsequently, Alli Elese returned to Lagos with Selia. In Lagos, during the lifetime of Selia and after the passing of the Marriage Ordinance of 1884, he married Asatu in accordance with Muslim rites. By Asatu he had one child, Asiata. On the death of Alli Elese, the question arose as to which of his children should be entitled to his estate. This hinged on whether the marriage with Asatu was legal. If the Christian marriage with Selia superseded the previous Muslim marriage with her, then Asatu’s marriage would be invalid. However, if the Christian marriage did not supersede the Muslim marriage with Selia, then Alli Elese could validly contract the Muslim marriage with Asatu. The Divisional Court held that since Alli Elese contracted a Christian marriage the subsequent marriage to Asatu was invalid. On appeal, the Full Court held that the Christian marriage was merely one of form. Accordingly, the marriage to Asatu was legal and her child was entitled to participate in the distribution of the estate of Alli Elese. The Full Court adduced a number of reasons for reaching this conclusion. First, Alli Elese and Selia were taken against their will as slaves to Brazil, which is a Christian country. Second, the court pointed out that Nigeria was not a Christian country, and by the customary law (including Islamic law) which is applicable, a man can legally have several wives. Thirdly, emphasis was given to the fact that the parties lived and died as Muslims. It was merely by the accident of their being in Brazil as slaves that they had to comply with the local form of marriage, which was Christian. Finally, it was said that Selia did not object to the second Muslim marriage. Whilst this case cannot be taken as authority for the proposition that any marriage that is subsequent to the first customary marriage is of no legal effect, the effect of the decision was to render the subsequent Christian marriage (which had been contracted after the Muslim marriage between Alli Elese and Selia) ineffective(i.e. it was of no legal effect).

In the English case of MARK –v- MARK (FD00D12215) which was decided by Hughes J (as he hen was) on 14^th March 2002, the husband contracted three valid customary marriages in Nigeria before contracting a customary marriage with the Petitioner in Nigeria in 1979. In 2006, whilst two of those three customary marriages were still subsisting, the husband and the Petitioner went through an English ceremony of marriage at the Merton Register Office in England (the Merton Ceremony). In considering the status of the Merton Ceremony, the parties called two expert witnesses who gave evidence on Nigerian law. The experts disagreed as to whether the Merton Ceremony would rank in Nigerian law as a statutory marriage capable of superseding a previous customary marriage. Since by the time of the Merton Ceremony the husband had at least two wives other than the Petitioner, it was agreed by the experts and Hughes J found that in Nigerian law there could be no question of the Merton Ceremony superseding the customary marriage and creating a monogamous union. Hughes J also found that in Nigerian law the Merton Ceremony would be held, if the issue arose, as void and would be so declared by the High Court. As far as English law is concerned, Hughes J said: “I am satisfied, and it has not significantly been disputed, that the Merton ceremony was of no effect whatever. This is because the parties to it were already married in the eyes of English law by virtue of the 1979 customary ceremony which is entitled to recognition here. I do not believe that an English court could or would grant a decree of nullity in relation to the Merton ceremony. If it did, it would create a legal impossibility, namely a decree of nullity of marriage after which the parties to the decree remain married. A decree of nullity of marriage is a decree establishing the status of the parties. A somewhat similar situation arose in the context not of nullity but of divorce in Thynne –v- Thynne [1955] P. 272. There the parties had married secretly but validly and sometime later had gone through a second more public ceremony. The court held, inter alia, that their married status derived from the first perfectly valid ceremony and that a decree of divorce dissolved that status even though at the time of the grant of the decree the wrong ceremony had been thought to have been responsible for creating the status of marriage. Accordingly, I hold that in the present case the parties’ married status derives from their customary marriage in 1979, a valid Nigerian marriage entitled to recognition here, and that the Merton ceremony is in English law of no effect whatever. Whilst Nigeria has parallel and mutually exclusive courts adjudicating upon them, so that it may in Nigeria be possible to be married in one sense and not in another, such concepts are unknown in English law. In English law, one is either married or one is not. If one marries abroad in circumstances in which the marriage is recognised here, then married one is. Such marriage state may be dissolved by an English decree of divorce providing that the English court has jurisdiction. if that happens, then the marriage state comes to an end for all purposes..”

The reasoning of Hughes J in the MARK case is very attractive and should be very persuasive in the Nigerian courts. In the example of Titus and Rebecca, they were already validly married to each other by the time they contracted the statutory marriage. In logic and in law, the subsequent statutory marriage should be of no legal effect because the parties derived their marital status from the earlier customary marriage. If the earlier customary marriage remains valid after the statutory marriage has been dissolved, the decree dissolving the statutory marriage will be of no legal effect because the parties will remain married to each other after the decree is granted. Thus, the decree dissolving the statutory marriage will create a legal impossibility or absurdity.

The effective decision in the JADESIMI –v- OKOTIE-EBOH case is that the statutory ceremony of marriage of 1961 did not nullify the earlier customary marriage between the parties and as such, it was not a marriage within the meaning of section 18 of the Wills Act 1837 that is capable of nullifying the Will that was made prior to the said marriage. Thus, the 1961 ceremony of marriage was of no legal effect whatever.

Since section 35 of the Act states that the earlier customary marriage is still valid, it is highly arguable that the subsequent marriage celebrated under the Act is of no legal effect as it would be illogical for the same couple to be married to each other under two systems of law at the same time. Since section 35 is later than section 33 (1), it is also highly arguable that it abrogates section 33 (1). Thus, the earlier customary marriage is the only valid marriage between the parties.

Conclusion:

The present state of the law is uncertain. A couple who dissolve their statutory marriage without expressly dissolving their earlier customary marriage might still be regarded as being married to each other. This might have unintended consequences when it comes to the question of intestate succession. There is a need for the National Assembly to amend the Act in order to clarify the status of an earlier customary marriage between a couple where the same couple subsequently contract a marriage to each other under the Act.

Until the Marriage is amended by the National Assembly to clarify the status of the earlier customary marriage, it would be advisable for parties not to contract the two types of marriage. They should either marry statutorily or under customary law. They should not contract a customary marriage and a statutory marriage. They should choose one system of marriage.

This article was originally published on August 3rd 2013.