Annulment of a marriage is the termination of a marriage contracted by parties who either did not possess the required capacity to marry or who failed to comply with the fundamental requirements for the celebration of the marriage.
The existence of a supervening defect in the purported marriage invalidates the marriage ab initio, consequently, rendering it null and void and of no effect. The legal consequence of an annulment is that the marriage never existed in the eyes of the law and as such, there is no change in the marital status of the parties. Annulment is completely different from dissolution of marriage as the grounds and the procedure are different entirely. The effect of annulment is that the parties to the marriage need not approach the court for a formal annulment but it advised that the parties should ensure that they approach the court to validate and confirm their position for future references. Certain prerequisites are fundamental to the celebration of a valid marriage. Where these pre-requisites or requirements are not complied with, the marriage affected may be void or voidable depending on the nature of the defects in the contract of the marriage or its celebration. Annulment is not granted indiscriminately; rather it must be proven strictly that the marriage is either void or voidable. Void means that it is not valid at all and incurably so, while voidable means that the marriage can be declared invalid if it is challenged by one of the parties to the marriage.
Marriages under customary law are also prone to nullity being that a married person cannot be implied by mere co-habitation or representation. There must be the performance of a ceremony, indicative of the fact that a marriage has been contracted. Failure to observe vital conditions of the marriage will render the purported marriage will be void and of no effect.
LACK OF CONSENT OF THE BRIDE’S PARENT:
the consent of the bride’s parent is the most fundamental requirement of a customary marriage. Any customary marriage which is performed without the bride’s parent is incurably defective and void. In most cultures, the consent of the bride’s mother can be dispensed with but it is mandatory that the consent of the father is obtained. In the absence of the father, the most senior male member of the family must give consent. Nevertheless, most of Nigerian cultures permit the rectification of this by obtaining the required consent.
LACK OF PAYMENT OF THE BRIDE PRICE:
A customary marriage is merely illusory without the payment of the bride price otherwise referred to as the dowry. It is integral to the ceremony and must be paid which may either be in cash or kind. The only exemption is only where the family waives the payment by returning the bride price which is at the discretion of the bride’s family and not based on the negotiation of the groom’s family.
CUSTOMARY MARRIAGE WITH A FOREIGNER:
Any purported customary marriage between a foreigner and a Nigerian citizen is void and of no effect because this may occasion a miscarriage of justice and detrimental to the foreigner. The application of customary laws on a foreigner who is completely alien to the laws and culture will be hugely detrimental and unfair. Nevertheless, a subsequent marriage under the Marriage Act will validate the marriage.
MARRIAGE BETWEEN BLOOD RELATIONS:
Generally, marriage between close relations to a certain degree is an abomination in most localities in Nigeria and consequently void. Most of the time, any purported marriage between people who are closely related cannot be rectified by any stretch of imagination.
Regardless of all that has been discussed, it is possible to rectify a void customary law marriage by rectifying the defects with subsequent actions. Parental consent can be sought and granted and the subsequent payment of the bride price confers validity on the previously defective marriage.
Under the statutory marriage, a marriage can be void or voidable depending on the extent and nature of the defects. A voidable marriage is a marriage which is valid and subsisting until the validity is challenged by one of the parties to the marriage in court. If the petition succeeds, then the marriage becomes void. The significance of this is that the marriage will continue to be valid until one of the parties to the marriage approaches a court of competent jurisdiction for an annulment. If the petition does not succeed, the marriage for all intent and purposes will continue to be valid and subsisting. For a marriage to be voidable, it must be based on any of the grounds enumerated under section 5 of the Matrimonial Causes Act which will be discussed below;
INCAPACITY TO CONSUMMATE:
Lack of consummation in a marriage means the inability of one of the party to the marriage to perform the first sexual intercourse after the celebration of their marriage. In considering the act of consummation, pre marital sexual intercourse, anal sex, kissing or touching by the couple will not be sufficient as an evidence of consummation. Conversely, consummation will be deemed to have occurred once there is penetration of the male sexual organ and the female sexual organ. It is immaterial that the couple used contraceptives during the sexual intercourse. Once the couple has performed the first sexual intercourse, the marriage is deemed consummated regardless of the fact that the sexual intercourse was only performed once throughout the duration of the marriage. This ground is not gender specific, in other words, it could be either of the party who is incapable to consummate the marriage. This could be due to impotence of the man or pre existing defects or abnormalities in the woman. It could also be due to psychological factors or emotional incompatibilities. The incapacity complained of must be of a permanent and incurable condition. Also, the condition must have been in existence at the time of the marriage and still existing at the hearing of the petition. The petitioner must be unaware of the condition prior to the marriage for the decree to be granted. If there is a remote chance that the condition is curable, or if there is evidence that the petitioner knew of the defect but still contracted the marriage, the court will decline to annul the marriage.
MENTAL DISORDER, EPILEPSY AND COMMUNICABLE DISEASE:
A marriage will be voidable if one of the parties is of unsound mind or suffering from epilepsy at the time the marriage was contracted. Unsoundness of the mind is a form of mental disorder which tampers with the mental capabilities of a person but cannot be regarded as outright insanity. Any person who suffers this mental condition may to an extent possess a degree of understanding and mental consciousness but it will be limited nature. This condition will limit the understanding and capacity of the person as to enable him lead a normal life required for marital responsibilities. The mental situation may be continuous or intermittent in nature. Once there is sufficient evidence that the mental disability is sufficient to impair the exercise of normal marital responsibilities and that the petitioner was unaware of the existence of this condition prior to the marriage, the court may annul the marriage.
COMMUNICABLE VENEREAL DISEASE:
The existence of a communicable disease contracted by one of the parties preceding the marriage can nullify the marriage. It is worthy of note to state that not all diseases will qualify for nullity of a marriage. The disease has to be communicable in nature which means that the petitioner or any other person can easily contract the disease by having a close contact with the person infected. Such disease can be HIV or hepatitis, sexually transmitted diseases and \tuberculosis. A ground for annulment can only be sustained if the petitioner can give evidence that the other party contracted the disease prior to the marriage and the party was still infected with the disease at the time of the hearing of the petition. The party who is infected with the disease cannot rely on the existence of this disease to file for an annulment. It is at the discretion of the other party who is endangered by the disease.
PREGNANCY BY ANOTHER MAN:
Where there is evidence that prior to the celebration of the marriage, the wife had gotten pregnant before the marriage by another who is not her lawful wedded husband, a decree of annulment may be granted. The lawful husband must lead evidence that he did not or could not have impregnated the wife. Mere suspicion will not succeed. Where the wife was impregnated by another man after the celebration of the marriage, the petitioner will not succeed under a decree of annulment. A petition for the dissolution of the marriage on the grounds of adultery will be the appropriate channel.
It is imperative to state that regardless of the existence of all these grounds discussed above, a petitioner may not succeed in his petition due to some reasons. A petition for nullity of marriage can only be filed during the first twelve months of the marriage. Once the time frame has elapsed, there can be no extension of time for the petitioner under any circumstance. Another reason is if the petitioner was aware of the facts but chose to contract the marriage nonetheless which suggest that he has waived his rights to any objection. The petitioner must be able to prove that he was unaware of any of the facts constituting the grounds at the time the marriage was celebrated. After the marriage celebration, the petitioner discovered facts constituting grounds for nullity but conducted himself in a manner that reflects that he has affirmed the marriage and accepted the condition, the petition will not succeed.
In conclusion, once a decree of nullity is granted by the court, the marriage becomes terminated from that date but all actions taken during the duration of the marriage remain valid. The legitimacy covers the children of the marriage, if any, whether natural or adopted and they will be eligible for ancillary reliefs stemming from the annulment. In the next edition, the issue of void marriage will be discussed.
Senior partner, Olamide Onifade & Associates,
149, Ogudu road, Ogudu, Lagos.