This Interesting write up is reacting to the one posted yesterday HERE and summarizes so beautifully..I love it when Lawyers cannot seem to agree on anything and begin to quote different cases to prove their point.
This is a must read!
I wish to react to your post on “traditional vs court wedding”. I wish to be anonymous. The opinion/submissions in the said post are largely false as they do not reflect the true position of the law.
I am in agreement with the writer on a few things; 1. That marriage may be celebrated in any licensed place of worship. 2. That a marriage contracted before the coming of the Act is valid
and 3. That Customary courts have jurisdiction over customary marriages. I differ on most of the other issues especially the issue of property purchased by spouses during the continuance of their marriage.
Let me first state that any marriage contracted in an unlicensed church is a customary marriage that has taken place and nothing more. If you must get married in an unlicensed church, be sure to have first contracted your marriage under the Act.
A person can either be married under the Act (Court marriage) or under custom (traditional marriage) as they are both valid marriages. The only difference is in their mode of operation and the methods adopted in their dissolution. It is important to note that there is nothing wrong with contracting a marriage under custom and contracting another under the Act so long as you are marrying the same person under both procedures. That is why in the present day, people do their trad, court marriage and church as well. Problems will only arise when you marry miss “A” under custom and marry miss “B” under the Act. The 2nd marriage in such circumstance will be invalid.
Note again that as soon as a man contracts a marriage under custom and contracts another under the Act to the same person, certain supposed “privileges” he would have enjoyed under custom will not apply as the Act takes first place in such circumstance. For example a man married under custom alone is allowed to marry more than one wife if his custom so permits. Islamic law permits marriage to about 4 wives. But as soon as you contract a marriage under the Act, it becomes a criminal offence to marry another wife. So for any man who desires to marry more than one wife, you should ensure that you marry under custom alone.
On the issue of properties purchased by spouses during the continuance of marriage, it is untrue that a woman needs to have her name on the properties of marriage before she can claim joint ownership, she needs not even show any receipt; being in a valid and subsisting marriage is all she needs to prove. The only properties she cannot claim are the ones purchased by the other spouse before the marriage. Any property purchased during the continuance of a valid marriage is jointly owned irrespective of whose name it is held. This is because of the concept of unity in marriage. A husband and wife of a marriage are seen as one under the law; that is why a man cannot rape his wife, that is why a spouse cannot be an accessory after the fact (a person who assists another who has committed a crime), that is why spouses cannot sue themselves in contract (except they are judicially separated) etc. The unity of marriage embodies the legal fiction that a husband and wife are one and none of the spouses can by their act defeat the survivorship of the other.
All the woman needs to prove is that she was/is married to man and that she made contributions to the property. The contribution must not be in cash; she could also contribute in kind. For example a woman who stayed at home taking care of the kids is said to have made substantial contribution to entitle her joint ownership of the properties of the marriage even if the property is not in her name. The courts have stated that the other party merely holds the property in trust. It is called constructive trust. See Nicholas Okere vs Theresa Akaluka CA/PH/114/2006 and also Amadi vs Nwosu (1992) 5 NWLR(pt 241) 273 at 280.
In summary a woman can claim joint ownership of the properties of a marriage irrespective of whether her name is on it or not. Being married under custom does not take away such rights as any custom that holds the contrary will be declared repugnant.