BLACK’S law’s dictionary 9th edition at page1059 defines marriage as a legal union of couples to the exclusion of others.
According to Pt iv, section 69 of the Marriage Act “marriage includes a purported marriage that is void but does not include one entered into according to muslim rites or other customary law”
Marriage therefore is of various types including statutory, customary or Islamic. Some people also talk of white wedding or church marriage.
On legal matters today we are concerned with statutory marriage also referred to as marriage under the Act and specifically whether person can marry under the Act and still go ahead to contract another marriage while the previous was still subsisting?
In Africa like many other climes, marriage is highly cherished and perhaps one of the most celebrated.
Ours is essentially a polygamous society where a man can marry many wives. Under our customary law, it is no crime to marry as many wives as possible. Indeed, it is seen as a mark of affluence to have such number of wives.
Statutory marriage however is different from both customary or marriage according to native law and customs as well as church wedding.
Unlike customary marriage, statutory marriage only permits of only one man, one wife and no subsequent marriage is allowed while the previous marriage subsists.
According to section 35 of the marriage, “Any person who is married under this Act or whose marriage is declared to be valid shall be incapable, during the continuance of such marriage, of contracting a valid marriage under customary law…”
From the above, it is clear that a party to a subsisting statutory marriage cannot at the same time contract a marriage with another person except the prior marriage is legally dissolved. See Agbeja v Agbeja (1985), 3 NWLR (pt.11) p.11 ratio 11.
The law with regards to statutory marriage does not only frown at polygamy, it also criminalise sit i.e. making it a punishable offence.
For the avoidance of doubt, section 39 of the Marriage Act clearly provides “whoever, being unmarried goes through the ceremony of marriage under this Act with a person whom he or she knows to be married to another person shall be liable imprisonment for five years.
Some have argued that such position of the law has the capacity of securing marriages against intrusion by external elements
Infact, a lady once said that a wise woman should insist on dragging her spouse to the marriage registry for the purpose of contracting statutory marriage as according to her that will clip the wings of husband snatchers and put the husband’s appetite for intruders to a check.
It was further argued that since no spouse wants to risk being jailed for violating the relevant provisions of the Act, spouses are most likely to be stable firm and united.
While it may be true that spouses especially the men may be scared of being jailed for violating the marriage Act, it is doubtful if the law without more has contributed meaningfully to stabilising marriages in our society today.
Considering the fact that statutory marriage though calculated to ensure the union if one man and woman as spouse, it also makes room for dissolution of marriage as soon as it has broken down irretrievably. See Section 15(1) of the Matrimonial causes Act.
The fact that the law recognizes that marriages including statutory marriage can break down irretrievably and subsequent provision for dissolution clearly shows that the Act has no absolute power in stabilizing marriages.
Indeed, the rate of dissolution of marriages and applications for divorce pending before the courts across the country together attests to the fact a union of a man and woman as spouses to the exclusion of others needs more than mere legislation to succeed .
Since the law prohibits another marriage during a subsisting one, all an incurable polygamist needs do to satisfy his appetite and escape the wrath of the law is to seek dissolution of the marriage provided he can satisfy the court that the marriage has broken down irretrievably.
Where however, the subsisting marriage remains solid, there will be no opportunity approach the court for dissolution of marriage.
Again there are cases where despite the violation of the marriage and marriage Act and the marriage subsequently going toxic, some victims of such violations more often than may choose to remain silent but rather engage the advice and services of spiritual advicers and prayer warriors for God to intercede and change the situation.
In such circumstance the law can hardly achieve its goal. For the law to achieve its purpose, every spouse should operate within the limit of the law and play responsible role in making the marriage work.
It is this same attitude of neglect, refusal, failure to respect the law on bigamy that made such law more or less a mere law in the text book rather than a veritable instrument for social engineering.
Infact, bigamy law no longer exists in a state like Lagos for instance. Will the same happen to the marriage act with respect to prohibition of marriage to another person while there is a subsisting marriage?
One hopes not. Gone are the days when polygamy holds sway . Although it is still being sustained in some parts of our society, modernity apart from the law dictates that it is no longer a symbol of affluence as it has indeed become anachronistic and counter productive today.
For those who do not cherish statutory marriage, they have the option of settling for marriage according to native laws and customs where they can keep as many partners as possible. Here polygamy is permitted and no offence is committed if they without dissolution of the existing marriage engage in as many traditional marriages as possible.
The option certainly is yours ,enter a statutory marriage, violate it and go to jail or embrace customary marriage with limitless opportunity to marry as many as you wish.
