BY G.K. GIRIGIRI ESQ.
1.0 HISTORY OF MARRIAGE: To achieve a better discussion on the topical issue above, it will not be out of place to first of
all know what marriage is.
Marriage is a universal institution which is recognized and respected all over the world. It started when God himself created the first two human creatures (Adam & Eve). He did not create two men or two women. He rather created two persons in two different sexes and immediately solemnized them as couple and commissioned them to be parents (upon consummation) to continue procreation. So they reproduced the rest of the world. Indeed, marriage is a product of God’ s divine design for human race or mankind. So, it did not start with us, it started from an unremembered time, a period of immemorial antiquity. Marriage is Biblical, Koranic, traditional, social and statutory.
This means that marriage is both religious and legal. Consequently, the sanctity of marriage is a well-accepted principle in the world community. Marriage is the root of the family and of society.
1.1 DEFINITION AND TYPES OF MARRIAGE IN NIGERIA
Before now, it was universally accepted that marriage, being a union of man and woman involves two persons of opposite sex. Consequently, sex constitutes an essential determinant of marriage relationship’. To this end, the validity of a marriage is also proved by showing that the parties are man and woman. This issue probes the question whether those who have undergone sex-change operation or surgery can be regarded as man or woman depending on their sex-change, for the purpose of contracting a valid marriage.
In the English case of CORBETT Y. CORBETT, the petitioner and the Respondent went through a ceremony of marriage in September, 1963. The Petitioner knew that the Respondent had been registered at birth as a male and had in 1960 undergone an operation for the removal of the testicles, most of the scrotum and the construction of an artificial vagina. Since that operation, the Respondent had lived as a woman. In December, 1963, the Petitioner filed a petition for a declaration that the marriage was null and void because the Respondent was a person of the male sex (the same as himself) or alternatively for a decree of nullity on the ground of either incapacity or wilful refusal to consummate. The respondent pleaded that the Petitioner was stopped from alleging that the marriage was void.
Ormrod, J. the learned judged observed… “The question then becomes, what is meant by the word ‘woman’ in the context of a marriage, for I am not concerned to determine the ‘legal sex’ of the respondent at large. Having regard to the essentially heterosexual character of the relationship which is called marriage, the criteria must, in my judgment, be biological, for even the most extreme degree of trans-sexualism in a male or the most severe hormones which can exist in a person with male chromosomes, male gonads and male genital cannot reproduce a person who is naturally capable of performing the essential role of a woman in marriage. In order words, the law should adopt in the first place, the first three of the doctor’s criteria, i.e. the chromosomal, gonadal and genital tests, and if all three are congruent, determine the sex for the purpose of marriage accordingly and ignore any operative intervention. The real difficulties of course will occur if these three criteria are not congruent.. My conclusion, therefore, is that the respondent is not a woman for the purposes of marriage but is a biological male and has been so since birth”.
To this end, may I congratulate Ex-President of the Federal Republic of Nigeria, His Excellency, Dr. Ebele Goodluck Jonathan for passing into law the same sex (prohibition) Act, 2013.In-spite of the pressure from Western World (those who brought the Bible and Christianity) to make Nigeria pass a same sex law and begin to behave below animals standard. This is because, even animals recognize male and female and would never adopt or practice gay marriage or same sex marriage. Certainly, Nigeria must continue to rule her world and protect her integrity in geography, legality and morality.
1.2 MONOGAMOUS MARRIAGE
A monogamous marriage in Nigeria is the same as in England, This is so because; Monogamous marriage is relatively foreign to Africa and by and large, Nigeria. Monogamous marriage is the culture of the European and American continents. Not Africa and Asia. It was this marriage that Lord Penzance described in HYDE V. HYDE’ as “… the voluntary union for life of one man and one woman to the exclusion of all others”. There are three aspects of this definition which deserve further explanation. Firstly, the marriage must be a voluntary union. Therefore, there must be free, unencumbered and un-induced consent or approval of both parties to the union. So the absence of genuine consent or the presence of inducement will vitiate the agreement Secondly, the marriage must be a union for life. Thirdly, it should and must be a union of one man and one woman to the exclusion of all others. The marriage must therefore, be monogamous as it does not admit the taking of more than one wife during the subsistence of the marriage.
According to the Interpretation Act, 1964, a monogamous marriage is “a marriage which is recognized by the law of the place where it is contracted as a voluntary union of one man and one woman to the exclusion of all others during the continuance of the marriage”.
This is the regime to which the Christian marriage originate or belongs. However, the problem between English marriage and Christian or church marriage is that under English Law, one can put a marriage to an end by way of dissolution (divorce). But the church does not permit the termination of a marriage for whatever reason.
1.3 POLYGAMOUS MARRIAGE
This may be defined as a voluntary or involuntary union of a man and a woman or a man and other women including concubines. In a polygamous marriage, the woman or wife has no right to question the infidelity of the husband but the wife is at every point under the sate-light beam of the husband. Here, marriage is contracted under customary law. It should be noted here that 99% of the marriages among members of our church today are contracted in this manner even when we claim it is guided by canon law or ecclesiastical law or even it has been solemnized in the church. The reason is obvious. The so called solemnization are not conducted in accordance with the law. So the marriages are at best customary court marriages since it has no statutory flavour.
The laws which govern the celebration and incidents of monogamous/statutory marriage in Nigeria are found principally in the Marriage Act 1914 now chapter 218 LFN, 2004 and the Matrimonial Causes Act, 1970, LFN, 2004.
1.4 SANCTITY OF MARRIAGE
Sanctity of marriage is a principle recognized and enforced by law. Every society makes laws that regulate and promote the institution of marriage. In Nigeria, a number of legal rules are directed at promoting marriage and invalidating all acts which may interfere with that institution. The law in certain circumstances presumes the existence of valid marriage even though there may not be strict proof that a valid marriage has in fact been celebrated. For instance, where marriage appears to have been celebrated between parties and by the proper persons, the law presumes that a valid marriage has thereby come into existence unless the contrary is satisfactorily proved – – Omnia proesumuntur rite esse acta. Thus, the mere absence of proof of the regularity of a marriage ceremony will not displace it. In protecting the institution of marriage, the law frowns at certain types of contracts that interfere with the sanctity of marriage. A contract the object or effect of which is to prevent a person marrying or which is a deterrent to marriage is void as being contrary to public policy. Moreover, the law strikes down marriage brokerage contracts by which a person procures a marriage between two parties for reward. Again, the law declares void a promise by a married man to marry a person who knows him to be already married as being contrary to public policy and an encouragement to immorality.