Bigamy in Nigeria
Marriage is a social and legal relationship. There are legal regulations to maintain the sanctity of marriage and to prevent actions deemed offensive to public morals. Every legal system, therefore, presents a conception of marriage, which states what validly constitute a marriage, stipulates actions that are wrong, and provides ground for its dissolution. This article focuses on bigamy and the legal implications of adultery.
Bigamy is a subset of polygamy. Bigamy can either be polygyny (where a man marries more than one woman) or polyandry (where a woman marries more than one man). In whatever form it occurs, bigamy is the direct opposite of monogamy, which is marriage to one person. The Black’s Law Dictionary defined bigamy as ‘the act of marrying one person while still legally married to another’.
Bigamy is generally a criminal offense, and it is governed by the Criminal Code of various southern states in Nigeria and the Penal Code of various northern states in Nigeria.
Section 370 of the Criminal Code Act states thus:
‘Any person who, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such. husband or wife is guilty of a felony, and is liable to imprisonment for seven years’.
The Penal Code also makes a similar provision for bigamy, as provided under Section 384(1), except that the Penal Code of Northern Nigeria makes a person further liable to a fine.
Ingredients of Bigamy
Nigeria operates a dual legal system. This duality creates a disparity in the application of the law, as the court often has to determine whether to apply the adopted English Common Law or to apply customary law (which includes the Islamic Legal System). With regards to marriage, the law that applies is determined by the form of marriage; whether it is statutory (made under the Marriage Act), or customary.
Any marriage under the Marriage Act is monogamous, as provided by the Act, and proceeding to get married to any person other than the recognized spouse shall render him liable for bigamy. This is based on the locus classicus case of Hyde v. Hyde where Lord Penzance gave the most widely accepted definition of Marriage under English Law as ‘the union of one man and one woman, voluntarily entered into for life, to the exclusion of all others’.
The Marriage Act, therefore, prohibits bigamy and penalizes it.
Section 35 of the Marriage Act prohibits a person who is married under the Act to pursue any other marriage with anyone else save for the same person previously married under Act.
In the case of R v. Princewill, one Bartholomew Princewill got married to a woman in 1950 at a church. At that time, he was a Christian. He converted to Islam and celebrated another wedding with one Fatima in July 1960. The court (per Reed J.), while examining the case stipulated the requirement of a previously existing, yet-to-be-terminated marriage stated that ‘there must be two ‘marriages’ to create the offense and the first question is whether both marriages must be monogamous’. He further stated thus:
‘There must be a husband and wife living and one of them must ‘marry’ so that this second ‘marriage’ is ‘void by reason of its taking place during the life of such husband and wife. ’
The court maintained a similar stance in Momoh v. Momoh where Aboki J.C.A ruled thus:
’Section 34 of the Marriage Ordinance stipulates that all marriages celebrated under the Act shall be good and valid in law to all intent and purposes. However, the Ordinance provides that any person who contracted a marriage under the Ordinance shall be incapable of contracting a valid marriage under any native law or custom.’
Adultery or cohabitation is insufficient to prove bigamy in the absence of a marriage ceremony. Ochem and Emejuru in their paper on Bigamy made a factual assertion that ‘the offence of bigamy is not committed by undergoing any marriage ceremony but a ceremony which is capable of producing a valid marriage, save, for the subsistence of the first marriage.’
Anyone who contravenes the law prohibiting bigamy is liable to be punished accordingly. Case law, however, reveals that rather than the 7 years imprisonment stipulated in Section 370 of the Criminal Code, lesser punishments have been meted out. In R v. Princewill, the punishment was for one month. In State v. Ezeagbo Nweke, the court sentenced the accused to two months imprisonment or a fine of $15. The judges in these cases explained the rationale behind their decision, recognizing that
- Nigeria is a naturally polygamous society
- Unlike the United Kingdom, most cases are devoid of deception. Some people who take a second marital partner inform the new partner of the former, mitigating the punishment as the intent to deceive is absent. English laws are strict against bigamy as the new partner often acts under the representation their partner is single.
- Many are ignorant of the rule of bigamy and enter new marriages without legally terminating the previous one, even if it has been constructively terminated.
Adultery or infidelity was defined by the court of law in Ibeabuchi V. Ibeabuchi as ‘consensual intercourse between two persons of opposite sexes, at least one of whom is married to a person other than the one with whom the intercourse is had, and since the celebration of the marriage’.
Damages for Adultery
Adultery is a criminal offence under the Penal Code of Northern Nigeria. Section 387 and 388 stipulate imprisonment for two years, and/or with a fine for adultery. It is not prosecuted under the Criminal Code of the Lagos State of Nigeria. However, it provides for redress if a spouse can prove that adultery occurred.
For instance, section 15(2)(b) of the Matrimonial Causes Act states that: “ The court hearing a petition for a decree of dissolution of a marriage shall hold the marriage to have broken down irretrievably if the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent”
Adultery will only be a ground for divorce if the spouse finds it intolerable. Where the spouse condones the act, the court will not terminate the marriage, as held in Alabi v. Alabi.
Section 31 of the Matrimonial Causes Act further provides that a party to a marriage can claim damages for adultery if such an act is not condoned and was not perpetrated for up to three years before such a claim is made.
Damages for adultery are compensatory. In awarding damages for adultery, the court considers the following:
- The loss suffered by the petitioner
- Injury to petitioner’s honor and feelings.
- Hurt to family life.
- Value of the adulterous spouse to the claimant
This write-up examines two issues that can occur in the course of a marriage; bigamy and adultery.
The article specifically examines the criminal nature of bigamy, drawing a discrepancy between the common law of England and native customary law. We are able to reaffirm that while adultery is no longer punishable in a southern state (Lagos) of Nigeria, it would result in punishment under the Northern penal code. However, adultery is one of the facts to prove that a marriage has broken down irretrievably and should be dissolved under the Matrimonial Causes Act.
By Resolution Law Firm