• 1.    Introduction
    1.1.    The purpose of this article is to examine the validity of a ceremony of a Nigerian customary law marriage that was celebrated outside Nigeria.
    1.2.    Subject to certain exceptions the formal validity of a marriage is governed by the lex loci celebrationis (the law of the place where the marriage was celebrated). Without exception, a marriage is formally valid if it complies with the formal requirements of the lex loci celebrationis even though it does not comply with the formal requirements of the law of the parties’ domicile.
    1.3.    Capacity to marry is governed by the law of each party’s ante nuptial domicile.  Subject to certain exceptions, a marriage is valid as regards capacity if each of the parties has, under the law of his or her ante nuptial domicile, capacity to marry the other.
    1.4.    It is becoming increasingly common for Nigerians to celebrate Nigerian customary law marriages outside Nigeria. Can two Nigerians who are domiciled in Nigeria celebrate a valid Nigerian customary law marriage in England? If such a ceremony does not create a valid Nigerian customary law marriage, can the courts infer a marriage by repute and cohabitation if subsequent to the ceremony the parties cohabited and held themselves out as being married to each other?
    2.    The marriage ceremony that took place outside Nigeria
    2.1.    Can two Nigerians who are domiciled in Nigeria celebrate a valid Nigerian customary law marriage in England?
    2.2.    In the English case of HASMITA JAWAHAR GANDHI  -v- MANGAL VIJAYALAXMI PATEL & 5 ORS [2002] 1 FLR 603, [2002] Fam Law 262 on 10th October 1989 Hasmita Gandhi (aka Hasmita Chhatralia)  and Jawahar Gandhi participated in a Hindu marriage ceremony in an Indian restaurant in London. The ceremony was conducted by Mr Bhatt, a Brahmin priest, and everything about the ceremony was done in full compliance with the requirements and traditions of Hinduism but no effort was made to comply in any respect with what the law of England requires to create a lawful marriage in England. At paragraph 33 of the judgment, Park J said: “I start with the basic proposition of private international law that whether a ceremony is effective to create the status of marriage between the participants depends, so far as formal requirements are concerned, on the law of the state in which the ceremony takes place. Thus English law recognises the validity of a marriage conducted in an overseas jurisdiction if the ceremony complies with the requirements of that jurisdiction, even if they would not have complied with the nearest equivalent requirements which apply under the law of England”. At paragraph 34 he said: “The other side of the coin is that if a ceremony which takes place in England is to create a relationship which English law will recognise as a marriage, it must comply with formal requirements of English law. Those requirements are mostly contained in the Marriage Act 1949. They cover such matters as the place at which the ceremony may take place, the necessity for some form of advance notice (like banns), registration, and the persons by whom marriage ceremonies may be conducted. If a man and woman whose families originated abroad take part in this country in a ceremony which, by the traditions of their own community does not comply with the Marriage Act 1949, they are not married in the eyes of English law. The relevance may be that, if the ceremony of 10 October 1989 had taken place in India (and if Jawahar had been divorced from Meera), they would have been lawfully married under the law of India…..But even if it would have been so under Indian law, the actual ceremony took place in England, and not in India. The ceremony failed in multiple respects to comply with the formal requirements of the Marriage At, therefore it was incapable of creating a marriage recognised as such under English law.” The ceremony was therefore declared to be a non-marriage. It could neither attract a decree of divorce nor a decree of nullity. It was simply not a marriage at all.

    2.3.    Thus, if two Nigerians who are domiciled in Nigeria (thus having the capacity to contract a customary marriage in Nigeria) participate in a Nigerian customary ceremony of marriage in England, that ceremony will not be recognised as a marriage because it failed to comply with the requirements of the law of England.
    3.    If such a ceremony does not create a valid Nigerian customary law marriage, can the courts infer a marriage by repute and cohabitation if subsequent to the ceremony the parties cohabited and held themselves out as being married to each other?
    3.1.    In  the English case of A-M  -v- A-M [2001] 2 FLR 6, the putative husband and wife were Muslims, having been born in Iraq and Syria respectively. In 1980 they went through a ceremony of marriage in a flat in London. The ceremony was conducted by an Islamic mufti from a London mosque, and it was intended by all (in particular by the husband, the wife, and the mufti) to be a formal marriage by Islamic process. Twenty years later the marriage had broken down and the wife commenced divorce proceedings in the English court. The husband argued that the court had no jurisdiction to grant either a decree of divorce or of nullity. His reasons were (1) that the parties were not married in the eyes of English law, so the court had no jurisdiction to grant a divorce, and (2) that they were not parties to a void marriage either, so the court had no jurisdiction to grant a decree of nullity: the ceremony created a non-marriage rather than a void marriage. Hughes J (as he then was) held that he had jurisdiction in divorce, because the wife could rely on the presumption of marriage which arises from extended cohabitation and the reputation of being man and wife: the husband had not produced the strong and weighty evidence which would be required to rebut the presumption.
    3.2.    Section 166 of the Nigerian Evidence Act 2011 provides as follows: “When in any proceedings whether civil or criminal there is a question as to whether a man or woman is the husband or wife under Islamic or Customary law, of a party to the proceedings the court shall, unless the contrary is proved, presume the existence of a valid and subsisting marriage between the two persons where evidence is given to the satisfaction of the court, of cohabitation as husband and wife by such man and woman”.
    3.3.    Prior to the enactment of section 166 in the new 2011 Evidence Act, the concept of marriage by repute and cohabitation had been known in Nigerian law.
    3.4.    At page 317 of The Law in Evidence in Nigeria, 2nd Edition (Sweet & Maxwell), Aguda wrote: “When there is evidence of the de facto celebration of marriage either under the Marriage Act or under customary law there is a very strong presumption in favour of the validity of the marriage. The leading English case on this matter is Piers v. Piers. In this case a marriage was celebrated in a private house, and although there was no evidence that the required licence was ever granted, yet the court pronounced in favour of the validity of the marriage on the grounds of this presumption. The facts of the Nigerian case of Adegbola v. Folaranmi & Anor are very complicated but can be simplified as follows for our present purpose. One Harry Johnson got married in Nigeria to one Oniketan under customary law and had a child by her. He was subsequently seized and made a slave and shipped to the West Indies where he lived for about forty years, his wife and child remaining in Awe, Western Nigeria, his home town. In the West Indies he was converted to the Roman Catholic faith and became a member of the Roman Catholic Church. Meanwhile he got married to one Mary in a Roman Catholic Church in the West Indies and Mary subsequently came to live with him in Lagos where they, on arrival there, were received into the Roman Catholic Church and took sacrament. There was no evidence that the man had got a divorce from his former wife under customary law and no certificate was produced to the court as evidence of the celebration of the marriage in the West Indies, yet it was held that the existence of this latter marriage must be presumed……This presumption of marriage extends both to formal validity as well as essential validity. Once a marriage has been proved to be celebrated, there is a presumption that the form it took was valid. Once the party who alleges the existence of the marriage has tendered evidence that the marriage was celebrated with the full intention of the parties concerned, then the party alleging the opposite has to disprove the non-validity of the form of the celebration of the marriage. His task will be made more difficult where the parties have lived and cohabited for a long time…”
    3.5.    This principle was applied in the unreported Kaduna Division of the Court of Appeal of Nigeria decision of NICKAF -v- NICKAF (CA/K/79/84). This appeal arose from a libel case in the High Court. The wife sued the husband for defamation claiming that she had been defamed by a publication that the husband made in a newspaper where he asserted that he was not married to her. The parties had agreed to marry each other. In 1972 the husband went to see the wife’s father and sought her hand in marriage. In the presence of family members, her father accepted the proposal and symbolically handed her over in marriage. He waived the payment of bride price by the husband. Thus, there was no payment of bride price. There was no formal celebration of the marriage. Subsequently, the husband and the wife agreed that the wife would change her name from Miss Titi Usman to Mrs Titi Nickaf. They both published this change of name in a newspaper. They then had three children between 1972 and 1979. In some letters written by the husband to the wife between 1972 and 1981, he addressed her as ‘Dear Wife’ and called himself ‘yours ever, husband’ and ‘Love Hussy’. They cohabited between 1977 and 1978. The wife was then known in her work place, official and social circles as Mrs Nickaf. In 1981 the husband then caused to be published in a newspaper, an announcement that he was not married to her. In an action for libel, the husband admitted the publication but pleaded justification. He contended that that he was not validly married to her as he did not pay bride price which is essential for a customary law marriage to be valid. He contended that there could not be a valid waiver of bride price under customary law. The trial judge ruled that there was a marriage between the parties and as such, the wife had been libelled. On appeal, the Court of Appeal felt it unnecessary to rule on whether there was a valid customary law marriage between the parties because it held that on the facts of the case, there was a marriage by repute and cohabitation between the parties.
    3.6.    The ceremony of customary marriage that the Nigerian couple performed in England (on its own) will not create a valid marriage in England and even in Nigeria because it did not comply with English law.
    3.7.    If each party intended to get marry to each other when they performed the ceremony in England and subsequently cohabited with each other, in an action between the parties in Nigeria for a declaration that they are married to each other or for jactitation of marriage, the Nigerian court will invoke section 166 of the Evidence Act 2011 and declare that the couple are lawfully married to each other. The party asserting that they are not lawfully married to each other will have a very difficult task of proving the contrary. Section 166 does not require the parties to have held each other out as having been married to each other and does not require the parties to have performed a formal ceremony of marriage. However, the fact that there was no formal ceremony of marriage might prove that one of the parties did not intend to get married to the other and the fact that that a party held the other out as being married to him or her might go to prove that he or she had the intention to marry the  other when they performed the ceremony.
    3.8.    Having secured a declaration from the Nigerian court that the marriage is valid, will the English court recognise the declaration and assume jurisdiction to dissolve it or grant financial relief (if it is dissolved in Nigeria)? This course of action by a party intending to bring divorce proceedings in England will not be necessary as she or he could invite the English court to apply the case of A-M  -v- A-M [2001] 2 FLR 6.
    4.    Conclusion
    4.1.    A party wishing to assert that a Nigerian court should presume a marriage by virtue of the couple’s cohabitation might find it difficult to establish that there was an intention on the part of both parties to get married and that there was cohabitation.
    4.2.    It will therefore not be safe to rely on such a ceremony of marriage and subsequent cohabitation for the assertion of a marital status. The parties should therefore endeavour to perform their customary law marriage ceremony in Nigeria.

    [1] T. Akinola Aguda, The Law of Evidence in Nigeria, 2nd Edition 217 (Sweet & Maxwell (1974), (3.4)
    [2] The Nigerian Evidence Act 2011, section 166 (3.2, 3.3 and 3.7)
    [3] HASMITA JAWAHAR GANDHI -v- MANGAL VIJAYALAXMI PATEL & 5 ORS [2002] 1 FLR 603, [2002] Fam Law 262 (2.2)
    [4] A-M -v- A-M [2001] 2 FLR 6 (3.1 and 3.8)
    [5] NICKAF -v- NICKAF (CA/K/79/84) (3.5)
    Chima Umezuruike, LLB (Hons) Nigeria, LLM (Lond), MAE,
    Barrister –at-Law of the Inner Temple,
    Solicitor and Advocate of the Supreme Court of Nigeria.
    The Chambers of I.N. Umezuruike, SAN,
    207 Igbosere Road, Lagos, Nigeria

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