Right to freely enter into marriage

Marriage requires consent and cannot be valid where there is force or deceit. Parties to any form or type of marriage in Nigeria must have given their consent freely towards such marriage. Where there is no free consent, there is no marriage, rather a kidnap. The freedom to freely consent to a marriage, contract the marriage and to enter the marriage is part of the rights of any woman in any part of Nigeria. Women are not mere property of men and no woman should be bought or forced into any marriage. Also, girls and children have a right not to be married until they are 18 years old, at 18 years of age, they have a right to enter and to refuse to enter into any marriage. Marriage is not by force, whether statutory, customary, or Islamic marriage.


What is the right to freely enter into Marriage?

It is the right of a woman to freely consent to marriage and to enter into marriage with the person of her choice at any time she pleases. The Child Rights Act specifies the minimum age for entering into a marriage. However, the Act has not been adopted by all the states in Nigeria.

Child Rights Act (part III, Section 21)

No person under the age of 18 years is capable of contracting a valid marriage, and accordingly a marriage so contracted is null and void and of no effect whatsoever.

Convention on the Elimination of all Forms of Discrimination Against Women CEDAW (Article 16): 1. States Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on a basis of equality of men and women:(a) The same right to enter into marriage; (b) The same right freely to choose a spouse and to enter into marriage only with their free and full consent; (c) The same rights and responsibilities during marriage and at its dissolution.

The language of the laws above shows clearly that the right to enter into marriage is not one reserved solely for men, but is one that women must enjoy as well. The right to marriage also implies that marriage cannot be entered into if the woman does not consent to it, and this consent must be sought and obtained without force or deceit. Part of the right to enter into marriage, is the right to refuse to enter into marriage. No woman should be forced, cajoled, or deceived to enter into any marriage. It is a woman’s right to say “YES” or “NO” or even nothing, to any marriage proposal, with or without any reasons.


How can the right to freely enter into marriage be violated?

Violation of the right of a woman to freely enter into marriage can take various forms, for example:

  • Lack of consent/forced marriage: where a person is forced or pressured to enter into a marriage without consent, this constitutes a violation of marriage rights. The case of Osamwonyi v Osamwonyi (1972) LPELR-2789 (SC), established that in any type of marriage, be it statutory, customary, or Islamic, consent of the parties to the marriage is an essential element.

  • Lack of consent of parent or guardian: under Islamic law of marriage, the consent of the parent or guardian of the wife is essential. If the guardian withholds consent for selfish considerations which are not in accordance with Islamic principles, it constitutes a violation of marriage rights.

  • of Ezeanah v Atta (2004) LPELR-1198 (SC), the judgement of the court shows that breach of promise to marry can occur under statutory, customary, and Islamic marriage.

  • Discriminatory policies: certain policies surrounding marriage are discriminatory to women seeking to exercise their right to enter into marriage. Policies of the police, NDLEA and other agencies that require women to seek for permission and approval from their superiors before such women can be married, are discriminatory, unconstitutional, and unlawful. It is unlawful as it does not have any backing in any law relating to marriage and constitutes a violation of marriage rights and fundamental human rights.

  • Unlawful Religious/Customary policies/practices: certain churches require intending couples to perform certain medical tests such as pregnancy tests and tests for STDs/STIs in order to determine whether they can marry such a couple under statutory law in their churches. The law highlighting the processes for carrying out a valid statutory marriage whether in the church or in the Marriage Registry do not make any provisions for such tests to constitute a criterion for marriage. Also, unlawful obnoxious customary practices that dehumanize women in order to influence their right to enter into marriage are unlawful and unconstitutional.


How to enforce your right to a free marriage?

Civil claims

In the event that your right to enter a marriage has been violated, you can bring a civil claim (case) against the person or body responsible for the violation of your right.

The violators/offenders can be sued in a Magistrate Court or a High Court in a State/FCT.

The available remedies that a court may grant will include payment of compensation to victim, issuance of a protection order in favour of the victim, declaration of the rights of the victim, prohibition of continued or subsequent similar violations of rights of the victim.

Human rights claims

In some cases, the violation of right to enter into marriage may also affect some fundamental human rights of the victim.

In such circumstances, the victim or her family and friends can sue the offender to enforce the fundamental human rights of the victim.

This process is better commenced with the engagement of the services of a legal practitioner.

The enforcement of this right may lead to payment of compensation to victim, issuance of a protection order in favour of the victim, declaration of the rights of the victim, prohibition of continued or subsequent similar violations of rights of the victim.

The appropriate court to approach is a High Court in a State/FCT or the Federal High Court.

Criminal prosecution

Where the violation of the right to enter into marriage causes a crime, then the law enforcement agency should be contacted immediately, for proper criminal complaint/petition.

This will lead to an investigation and where there is a true suspicion of crime, the law enforcement agent will charge the offender to court.

This may lead to the imprisonment of the offender and or payment of fine as well as compensation to the victim.

An offender may be prosecuted at a Magistrate Court or Area Court.


Rights against bigamy

Bigamy is the crime of marrying another person, while one is already validly married under a statutory marriage and the spouse is still alive.

A wife has the right to take her husband to court if the couple is validly married under statutory law and the husband marries another wife. If the couple is validly married under customary law and the husband subsequently marries some other person under statutory law, that is also bigamy.

Bigamy is regulated in the following laws:

Criminal Code: Section 370

Any person who, having a husband or a wife living, marries in any case in which such marriage is void by reason of it taking place during the life of such husband or wife, is guilty of a felony, and is liable to imprisonment for seven years.

Penal Code: Section 384(1)

Whoever having a husband or wife living marries in a case in which that marriage is void by reason of it taking place during the life of that husband for wife, shall be punished with imprisonment for a term which may extend to seven years and shall also be liable to fine.

Marriage Act: Section 33(1)

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.

A wife whose husband has committed the crime of bigamy can report her husband to the police for investigation and prosecution. To prove bigamy in court, it needs to be established that:

  1. There is a valid marriage in existence, this can either be a monogamous (statutory law) or polygamous (customary or Islamic) marriage. A statutory marriage can be proven with a Marriage Certificate while a customary or Islamic marriage can be proven through credible oral evidence (testimony from witnesses) or proof of registration of such marriage at the Area Court or Customary Court;
  2. The aggrieved wife is still alive. This can be established if the wife gives testimony in person in court;
  3. A second marriage must have been celebrated. Merely having sexual relations with another woman will not classify as marriage. A marriage must have been celebrated, whether a statutory marriage, customary marriage, or Islamic marriage.

 Note: Lagos State has decriminalized bigamy, which means that it is no longer a crime in Lagos State for any husband/wife to marry another woman/man, where there is an already existing valid statutory marriage.

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