It is not out of place for Nigerians living abroad to meet the love of their lives while in sojourn in another country. It is easy and almost straight-forward if both parties are citizens of Nigeria and have their domicil as Nigeria. The challenge is usually in situations where one of the parties (especially the husband) is not a Nigerian or where the parties desire to contract the marriage in their country of habitation but under the Nigerian Marriage Act or where parties have contracted the marriage under the laws of the jurisdiction of habitation but desire to file for divorce in Nigerian Courts.
The usual practice among Nigerians
living abroad has been to invite their spouses to Nigeria in order to perform
the marriage processes in a Marriage Registry in Nigeria. However, with the
recent restrictions as a result of the global pandemic, questions are being
asked whether there are other ways parties who desire to be married under the
Marriage Act of Nigeria but who live in foreign lands can legitimately do so. Also,
enquiries are usually made whether a marriage contracted in another jurisdiction
or under the laws of another country can be recognized by Nigerian courts and
whether such marriages can be validly dissolved by Nigerian courts. This short
article provides the answer.
Section 49 of the Marriage Act, Cap M6
Laws of the Federation of Nigeria 2004 ("the Act") provides the basis
upon which marriages contracted outside Nigeria would be recognized under the
Nigerian law as if it had been contracted in Nigeria before a Registrar in the
Registrar's office. The section states that “a marriage between parties one
of whom is a citizen of Nigeria , if it is contracted in a country outside
Nigeria before a marriage officer in his office, shall be valid in law as if it
had been contracted in Nigeria before a Registrar in the Registrar’s office.”
However the validity of such foreign marriages is hinged on strict compliance
with the basic requirements as stipulated by sections 50-53 of the Act which
can be summarized as follows:
a)
Either of the parties must be a
citizen of Nigeria:
So long as one
of the parties to the proposed marriage is a Nigerian either by birth or
naturalization, the Act recognizes the right of such party to conduct a foreign
marriage in accordance with the stipulations of the Act.
b)
The marriage must have been
contracted before a Nigerian Diplomat or a Consular officer of the rank of Secretary
or above, at his office:
The Act recognizes
any diplomat or consular officer of the rank of a secretary or above as a
marriage officer and such person is eligible to officiate the marriage.
c) The marriage must be conducted at the Marriage officer’s office:
In this case,
since it is the Diplomat or consular officer who is conducting the marriage,
the office by him in his day to day activities as a diplomat or consular
officer shall be the office used for the marriage. It therefore suggests that
marriages conducted before a diplomat or consular officer at a place other than
the office used for his diplomatic or consular duties is void under the Act.
d) The basic procedure of statutory
Marriage Notice and issuance of Registrar's Certificate before the celebration
of marriage, as it obtains in Nigeria under the Act, shall also apply to
marriages before marriage officers in the foreign country, i.e the Nigerian
Diplomat or Consular officers in that country, for the purposes of the Marriage
Act, subject however, to the modifications contained in Section 52 of the Act.
It seems that where one of the
parties to a foreign marriage is a Nigerian, the position of the Marriage Act
is straightforward and well regulated. Strict compliance with the Act is
required to confer validity to such foreign marriage.
However, the other basis for the
recognition of the validity of foreign marriages in Nigeria, particularly where
neither party is a Nigerian or where the marriage was not conducted, not in
compliance with sections 49 -53 of the Marriage Act, but under the laws of the foreign
jurisdiction, is the common law rule of lex loci celebrations which
means validity on the basis of the law of the place where the marriage was
celebrated. The import of the rule is to accredit validity to foreign marriages
in as much as they are conducted in compliance with the laws of the country
where the marriage was celebrated.
This common law rule is given
credence under section 3(1)(c) of the Matrimonial Causes Act Cap M7 Laws of the
Federation of Nigeria 2004, which provides that a foreign marriage is valid
except the marriage is not valid marriage under the law of the place where the
marriage takes place, by reason of a failure to comply with the requirements of
the law of that place with respect to the form of solemnisation of marriages. Therefore,
marriages which are validly contracted in the country where it was contracted
will be recognized in Nigeria.
However, only domicil may confer
jurisdiction in matrimonial causes (including those arising from marriages
contracted outside Nigeria) on Nigerian Courts. Section 2(3) Matrimonial Causes
Act, provides;
'For the avoidance of doubt it is
hereby declared that a person domiciled in any State of the Federation is
domiciled in Nigeria for the purpose of this Act and may institute proceedings
under this Act in the High Court of any State whether or not he is domiciled in
that particular State.'
Domicil is generally defined as the
place where a person is physically present and regard as home. Section 7 of the
Matrimonial Causes Act provides that;
'A deserted wife who was domiciled in
Nigeria either immediately before her marriage or immediately before the
desertion shall be deemed to be domiciled in Nigeria;
a wife who is resident in Nigeria at
the date of instituting proceedings under this Act and has been so resident for
the period of three years immediately preceding that date shall be deemed to be
domiciled in Nigeria at that date.'
Consequently, where the petitioner
who contracted a marriage outside Nigeria has not been resident somewhere in
Nigeria before instituting the proceedings in Nigeria, Nigerian courts would
lack the jurisdiction to entertain such petition. See Bhojwani v. Bhojwani
6NWLR (pt. 457)661
Whereas it is
difficult to identify many case laws whereat the Nigerian Courts have recognized
and validated and indeed acted on a certificate of marriage contracted in a
foreign jurisdiction, it is also difficult to identify Nigerian cases where the
courts have clearly said that they lack the powers to do so. One opportunity
the Nigerian court had was in the case of Bhojwani v. Bhojwani 6NWLR (supra)
which opportunity was wasted by the
events that occurred in the English court before the matter could be heard in
Nigeria.
In that case, the Appellant, a Singaporean who was married to the
Respondent, a Nigerian in England, filed a petition for divorce in the High
Court of Lagos. The marriage between the parties was solemnized in England in
accordance with the English Law. The petitioner/appellant was born in Singapore
on 27th July, 1961. The respondent was born in Lagos Nigeria on 10th May, 1963.
The petitioner was a company Director in Nigeria and had been directing the
family business in Nigeria since 1979. Against this petition for the
dissolution filed on 6th February 1995, the respondent brought a motion seeking
an order that as the appellant was not domiciled in Nigeria, the High Court of
Lagos or any High Court in Nigeria for that matter had no jurisdiction to hear
the petition for the dissolution of the marriage. The trial Court ruled
it had jurisdiction. Against this ruling, the respondent appealed to the Court
of Appeal. The Court of Appeal set aside the ruling of the trial Court and held
that the petitioner was domiciled in Singapore and not in Nigeria as claimed by
him. The Appellant appealed to the Supreme Court and before the appeal
could be heard, the English Court had heard and determined the petition for
divorce brought by the Respondent and had issued a decree nisi. The Supreme
Court therefore held that it was unable to continue with the hearing of the
appeal or order the trial court to hear the appellant’s petition.
While the court reiterated the law that domicil is the condition for eligibility to institute a divorce petition in Nigeria, it lost the opportunity to decide whether a foreign national who resides in Nigeria and who is married to a Nigerian woman has acquired the domicil of Nigeria and also whether the Nigerian courts could validly dissolve a marriage contracted in or under the laws of a foreign jurisdiction.
As the matrimonial jurisprudence
continues to develop in Nigeria, for now, it can be argued that neither the
Marriage Act nor any other legislation in Nigeria invalidates any marriage
contracted under the laws of a jurisdiction outside Nigeria.
SAPPHIRE & BRECKINRIDGE
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