Invalid Marriages and Annulment in Nigeria

People use annulment and divorce (read our complete guide to divorce in Nigeria) interchangeably, but this is wrong and both words mean different things legally. In this article, we will help you understand what annulment is and to what type marriages it applies. As experienced divorce lawyers, we will make this topic simple to understand.

Contents

Introduction

What is an Invalid Marriage?

Types of Invalid Marriages in Nigeria

Void Marriages

Voidable Marriages

Effects of a Decree of Nullity or Annulment of Invalid Marriages

Conclusion

Introduction

When getting married, it is important to ensure that all legal requirements of a statutory marriage in Nigeria is observed and adhered to strictly. Else, the marriage may be invalid and all the benefits accruing to couples that are duly married will be lost.

The validity of a marriage is especially important in estate sharing in the event of death or when a party to a marriage wants to end the supposed marriage as parties to an invalid marriage cannot have a divorce and may be stopped by third parties from inheriting anything from the estate of the deceased partner if he or she died without a will. If you are in this type of dilemma, click here to chat with one of our lawyers

What is an Invalid Marriage?

An invalid marriage is a type of marriage which is defective in law due to the form or some facts existing before or after the marriage that has affected its legality.

Types of Invalid Marriages in Nigeria

1. Void marriages
2. Voidable marriages

Void Marriages

A void marriage is one that the law regards as something that has never been in existence. That is, the law sees the supposed husband and wife as never been married, and thus have never acquired the husband or wife status to the other.

Grounds Upon Which a Marriage Will Be Void

Section 3 of the Matrimonial Causes Act lists the following as grounds upon which a statutory marriage will be void:

1. Preexisting marriage with another person- even if this preexisting marriage is only a customary marriage, such a person cannot lawfully marry another person under the Act.
2. Prohibited degrees of affinity and consanguinity- if parties to a marriage are related by blood or by marriage, they cannot have a valid statutory marriage in Nigeria. Blood relationship is easily understood, but not relationship by marriage. Relationship by marriage refers to ones’ stepchildren or step siblings only. A man or woman can marry the brother, sister, niece or nephew of an ex or deceased spouse; but cannot marry the ex or deceased spouse’ child.
3. Having a statutory marriage without adhering to the stated form of celebration and formalities. For instance, getting married under false names, or in a place of worship that is not licensed, or the by a minister that is not licensed to conduct marriages.
4. Lack of real consent- if a party to the marriage was forced to consent to the marriage or entered into the marriage due to some fraudulent misrepresentations or deceit, or a party to the marriage is not able to give real consent at the time of the marriage due to insanity, the consent will be said to have been fake.
5. Marriageable age-

A void marriage does not need an annulment order (decree of nullity) to nullify it as the law sees such union as no marriage from the beginning. However, if there is an application for the annulment of a void marriage, the order of annulment will take a retrospective effect from the date the supposed union was entered into.

Note that parties to the union or even a third party can bring an application before the court for the court to nullify a void marriage. For example, if a man who died intestate (without a will) had a voidable marriage, if he had a wife he was married to according to customary laws and practices, such a woman can bring an application for annulment of the void marriage upon his death. If she succeeds in proving her case, the second woman who lived with the deceased as wife will not partake in sharing his estate as was never married to him in the eyes of the law.

Also, third parties such as siblings, children, partners, etc can bring an application for annulment of a void marriage. Application for annulment of a void marriage can even be brought when the parties to the void marriage are dead. This is usually done for the purposes of estate and inheritance.

Voidable Marriages

A voidable marriage is a marriage that can be annulled at the instance of one or both parties to the marriage because of some existing defects. Thus, if parties to a marriage are okay with these defects, no other person can bring an application to the court for the marriage to be annulled.

Unlike a void marriage, upon death of one of the parties, the living partner cannot bring an application for annulment of the marriage.

Grounds Upon Which a Marriage is Voidable

Section 5 of the Matrimonial Causes Act lists the grounds as follows:

1. Incapacity to consummate the marriage- if any of the parties cannot have standard and complete sexual intercourse; with full penetration of the female vagina by the penis, consummation has not taken place and it is a ground to seek for annulment.
2. Preexisting history of insanity, epilepsy, or any other mental disorder- if this history is not known to the party prior to the marriage, it makes the marriage voidable at the instance of the party who does not know. And it is a ground for annulment.
3. Venereal disease- a marriage is voidable if any of the parties at the time of the celebration of the marriage has a venereal disease that is communicable.
4. Pregnancy at the time of marriage by a man other than the husband.

In addition to the proving these grounds, the party asking for annulment must prove to the court that he or she was unaware of these facts(grounds) at the time the marriage was celebrated. If he or she had knowledge and still went ahead with the marriage, then there has been approbation.

Secondly, a petition for annulment cannot succeed unless it is brought within 12 months from the celebration of the marriage.

Also, the petitioner asking for annulment should prove that there has not been any marital intercourse since discovering the facts that constitutes the grounds upon which the application for annulment was brought.

Once the court is satisfied with the facts before it, it will make a decree of nullity in favour of the petitioner.

Note that the party guilty of concealing facts cannot use that as a ground to bring a petition for annulment, only the aggrieved party who is ignorant of these facts can.

Effects of a Decree of Nullity or Annulment of Invalid Marriages

As earlier stated, a void marriage does need a court order to end it as the law sees it as something that never existed. However, where there is an application for the annulment of a void marriage and the application is successful, the decree of nullity is merely a declaration of an existing fact. Thus, the effect is that all the years of the supposed marriage and the acts therein, are taken to be acts done outside of marriage.

On the other hand, for voidable marriages, the decree of nullity annuls the marriage from the date such decree was made. In other words, it has no retrospective effect. Thus, all acts done by the couple as husband and wife while the supposed marriage lasted is to be held as acts legitimately done in a marriage.

Conclusion

Though the decree of nullity of marriage (also known as annulment), is to invalid marriages what divorce is to valid marriages (read about divorce papers in Nigeria here), the legal effects of these are not same. There are many drawbacks of having been a party to an invalid marriage and the effects of this can be lifelong. It is important that couples who intend to have a statutory marriage in Nigeria endeavour to adhere to the requirements in order to have the type of marriage they desire.

We don’t just write to teach you Nigerian law in a simple way, we are your best family law lawyers in Nigeria. Feel free to reach our firm on, 08030881289.