CHAPTER ONE
GENERAL INTRODUCTION
In every community, marriage is considered imperative because it is the foundation upon which the society is founded. Although, marriage has no universally acceptable definition, hence it is dynamic in the sense that it cut across jurisdictions, race and tribes and the definition to be given to the concept will depend very much on the social and religious beliefs of a particular society. Marriage could be said to be the basis of the legal family, the leaned author, E.I. Nwogugu defined marriage as;
“Marriage is a universal institution which is recognised and respected all over the world as a social institution, marriage is founded on and governed by the social and religious norms of society”1
The fact being stressed here is that there is an element of divinity in the concept of marriage. This fact is evident in the Holy bible when it says thus „a man shall leave his father and mother, and shall leave unto his wife and they shall become one flesh?2. The sanctity of marital institution is also traced to the Qur?an, the holy book of faithful
Muslims where it was said that „marry (other) women of your choice, two or three or four, but if you fear that you shall be able to do justice (with them) then only one?3
Double-Decker marriage is nowhere defined in the marriage Act. The dictionary meaning of double-decker however is a vehicle with two decks or a sandwich with two layers of filling. The illustration created is this view is different or separate compartment but is the same bus and piloted by the same driver or separate layers of filling accommodation in one loaf. When one applies this illustration to the issue of marriage, a double-decker marriage would mean two validly permissible marriages contracted by the same person. Statutorily, Section 33 (1) of the Marriage Act (MA) states thus:
“No marriage in Nigeria shall be valid here either of the parties thereto at the time of the celebrities of such marriage is married under customary law to only person other than the person with whom such marriage is had”4
Basically in Nigeria, the two forms of marriage a couple contracts simultaneously are also customary law marriage and statutory marriage. This is permissible under Section 33
(1) MA and by this section it can only be between the same person. Although double-decker marriage is not expressly provided for under the law, but can be implied by applying literal and golden canon of interpretation of statute. Hence, double-decker marriage was impliedly created under the law in Nigeria.
The essence of marriage in the society cannot be overemphasised, as some marry for the sake of children, some marry to fulfil sexual urge. In advanced country, it is a common phenomenon to see people engage in “contractual marriage” i.e marriage agreement either for months, years or for a specific period. In fact men marry men and women marry women.
In Nigeria, apart from statutory marriage, the other form of marriage is customary marriage. The basic feature of statutory marriage is marriage according to the provision of common law which customary marriage is marriage according to the tradition. In between these two, there appear what we call “a batlike” marriage otherwise known as double-decker marriage.
The issue now is, what is the essence of wasting money on the same marriage twice despite the economic problem prevalent in our country, both socio-cultural and economic associate the double-decker marriage as a pointer to the final associated problem which serves as the basic background for this project.
Therefore, what are the issues, problem and is there any prospect in this double-decker marriage. What is the essence of such marriage since the court has held in Jadesimi v. Okotiebo5 that the status of customary marriage is also statutorily recognised in Nigeria.
5 (1996) 2 NWLR 128
Lots of controversies and series of opinions and ideas have accompanied the formation, reasons and necessity for a double-decker marriage. Many have expressed opinions for the necessity of clothing the customary type of marriage with its statutory flavour while to some people, it is basically a waste of money. Therefore, the effort and major objectives of this study will be to examine all the hullabaloos surrounding this common marriage system in Nigeria today. The study will examine the advantage, limitations and reasons why people engage in double-decker marriage. At the end of the exercise, a standing form of model law will be profound by this study based on researcher?s findings as regards double-decker marriage in Nigeria.
The Nigerian legal system as a conglomeration of three distinct forms of laws; the received English law, the customary law and the Islamic law. It should be noted that reception of English law into Nigeria was in two broad forms. Firstly, there were those which were made applicable and enforceable in Nigeria directly and secondly there were those which were received into the country by various local legislators which had formed the bedrock of our present day law.
This project work will therefore examine the statutory provision on marriage and customary law marriage. Efforts shall be made to look at the contraction of both
marriages by same parties and the rights such parties can exercise. All these fall within the context of this project work.
This study is essentially based on statutory and customary marriage in Nigeria with particular reference to contraction of both types of marriage by some parties which is known as double-decker marriage. Emphasis will also be placed on concept of marriage generally, limitations to double-decker marriage and its validity.
The work is however united by ratifying of materials especially on the statutory and customary law marriage. Even the few available ones have yielded themselves to inconclusive discussions which is part of the thrust of this research.
The methods of research to be employed are basically analytical and critical, by the use of primary and secondary source of law. The primary sources includes statutory provisions, judicial provisions, textbooks and journals.
Secondary sources like opinions of legal writers, essays, seminar lectures and materials from internet are also employed. The sources are essentially in-exhaustive but the foretasted were the means through which the bulk of information was garnered. The Research findings will be further scrutinized by ascertaining or negating their suitability to the current terrain. More importantly, empirical findings were made through an update of events in the globe.
There are plethora of works and authorities on the concept of double-decker marriage. A lot of jurists have one thing or the other to say on this concept.
Nwogugwu E.I6 in his book titled “Family Law in Nigeria” is of the opinion that this type of marriage has led to important legal questions and it is uncertain whether the statutory marriage supersedes for all intents and purposes, the previous customary law marriage or whether the customary law marriage is merely put into abeyance, to revive after the subsequent statutory marriage has come to end. There is also the question of whether both marriages co-exist. He has also pointed out two decided cases in which this question arose, “the case of Asiata v. Goncallo7 and Ohochucku v. Ohochuku8.
Magret Onokah9 also made her own contribution on double-decker marriage in her book titled “Family Law” where she gave result of her investigation to the legality of this variant marriage. She also attempted to rationalise its celebration in a system where either a customary law or Act Marriage between the couple with a marriage status. Analysis is also made on the controversy regarding its effects and incidents, which invariably are those of the respective marriage types.
Barrister Olokooba S.M.10 in his work titled Termination of “Double-decker” marriage under Nigerian law pointed out the actual meaning of the form of double-decker marriage and what makes it valid. He gave out justification for its validity in Nigeria also the issues and problems of its termination.
Abdulmalik S.M11 in his paper published in Lead City University Journal gave a general note on double-decker marriage on its reason and also its implication and effect. He also gave a short note on its effect on properties acquired during such marriage i.e whether a wife being at a disadvantaged position under customary law marriage does not arise as she will automatically rely on her statutory law marriage.
Therefore, from the aforesaid, it could be seen that the various literature review so far in this study shows the scope and complexity of double-decker marriage which has been properly handled by the various authors. However, the advantages and benefits of double-decker marriage have not been mentioned in any of the materials gathered and therefore not making them sufficient. Premise on that, there is every likelihood that this study will contribute to knowledge in law and in relation to double-decker marriage.
Quite a number of terms have been used in the course of writing this project. Among those terms and their usages in the study are:
Part 1, 2008.
Marriage: this is the union of a man to a woman to the exclusion of all others
Double-decker marriage: two validly permissible marriages contracted by the same persons under two different systems of law.
Conversion theory: a marriage which is converted thereby losing its characteristics and nature to that which it is converted
Co-existence theory: two forms of marriage which their respective incidents co-exist
Hardly can we see any present textbook on family law that contains a lot of double-deck marriage or even recent cases on it. In view of this, available text on marriage in Nigeria as illuminating as they are, are most inadequate in stating the current provision of the incident of double-decker marriage as they stand today in Nigeria.
This research work will critically examine double-decker marriage with a view of improving in materials and particularly the already existing work in this field of study.
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