In a layman’s parlance, “nullity of marriage” and “dissolution of marriage” could mean one and the same thing. It is true that a decree for a nullity of marriage and a decree for dissolution of marriage both bring an end to marriage. However, a cursory look will reveal that though they achieve the same purpose, “nullity” is distinctive of “dissolution” and both words cannot be used interchangeably, particularly in law practice.
In Nigeria, marriages could be severed either be a decree for dissolution or marriage or by a decree for nullity of marriage. A marriage could either be dissolved or annulled. While it is the common practice for parties to institute an action for the dissolution of marriage on the lone ground that the marriage has broken down irretrievably, in accordance with the provision of Section 15(2)(a) –(h) of the Matrimonial Causes Act, 1970 (hereinafter referred to as MCA), marriages can also be nullified on the ground that the marriage is void or voidable in accordance with the provision of Section 3(1)(a) – (e) and Section 5(1)(a) – (d) of the MCM respectively..

The Blacks’ Law Dictionary defines annulment as an event or judgment treated as if it never happened. The annulment of a marriage would connote treating the marriage as if it never happened or existed. Our area of focus in this piece is on the annulment of marriages in Nigeria. The annulment of a marriage relates to a voidable marriage and a void marriage.

Voidable marriage and Void marriage
For a decree for nullity of marriage to be obtained, the marriage must either be a void marriage or a voidable marriage or both. Void and voidable have different interpretations and connotations under the law. For instance, under the law of contract, a contract will be considered void when it requires one party to perform an act that is impossible or illegal. A voidable contract on the other hand is a valid contract and can be enforced.

In Matrimonial Causes, a void marriage is a marriage that is unlawful or invalid ab initio. It is considered as no marriage in the eyes of the law. A voidable marriage on the other hand is one which can be declared invalid on petition by either party of the marriage. The marriage, though valid is subject to annulment if contested in court by one of the parties to the marriage.

Section 2(2)(b) and (c) of the MCA makes provision for the institution of proceedings for a decree of nullity of a voidable marriage or nullity of a void marriage respectively. Where proceedings are instituted for a decree for nullity of a void marriage or nullity of a voidable marriage, the court grants a decree of nullity of marriage annulling the marriage and thus brings same to an end.

When a marriage is said to be Void
Section 3(1) of the MCA is clear on the grounds for a marriage to be void. They are;

Lawfully married to another person at the time of marriage: If a party to the marriage was previously married to another person prior to his/her marriage, that ground makes the new marriage a void marriage. This is even so hinged on the fact that our lawsdoes not permit and as such frowns upon an individual being lawfully married to two different persons at the same time. Aside from such a marriage being void, it is also a criminal offence called bigamy punishable by law. This does not include our customary marriages as under our native laws and customs, a man is permitted to marry more than one wife and can take another wife under native law and custom while already being married. It therefore follows that every marriage contracted by a party who had been previously married to another person is a void marriage and shall be nullified by the court. It is important to note that it is the subsequent marriage that is a void marriage and not the previous lawful marriage.
Marriages within the prohibited degrees of consanguinity or affinity: Consanguinity means descending from the same ancestor while affinity is relationship, especially by marriage as opposed to blood ties. Marriages to persons from the same ancestor/blood tie or to persons related by marriage are void marriages. The First Schedule to the Matrimonial Causes Act 1970 sets out the degrees of consanguinity and affinity which are prohibited for marriage as follows;
Marriage of a man is prohibited if the woman is, or has been his:

Consanguinity Affinity

Ancestress wife’s mother

Descendant wife’s grandmother

Sister wife’s daughter

Father’s sister wife’s son’s daughter

Mother’s sister wife’s daughter’s daughter

Brother’s daughter father’s wife

Sister’s daughter grandfather’s wife

Son’s wife

Son’s son’s wife

Daughter’s son’s wife

Marriage of a woman is prohibited if the man is, or has been, her:

Consanguinity Affinity

Ancestor Husband’s father

Descendant Husband’s grandfather

Brother Husband’s son

Father’s brother Husband’s son’s son

Mother’s brother Husband’s daughter’s son

Brother’s son Mother’s husband

Sister’s son Grandmother’s husband

Daughter’s husband

Son’s daughter’s husband

Daughter’s daughter’s husband

It is pertinent to note that the provision of section 4(1) of the MCA gives room for two persons who are within the prohibited degrees of affinity who wish to marry each other to apply in writing to a Judge for permission to do so and if the Judge is satisfied that the circumstances of the particular case are so exceptional as to justify the granting of the permission sought, he may permit the applicants to marry each other.

The marriage is not a valid marriage under the law of the place where the marriage took place: There are various formalities to be strictly followed for a marriage under the Act to be valid. One of such is that the marriage must be contracted in a Registrar’s office or in a licenced place of worship. Any marriage celebrated in any other place will be a void. Marriages instituted under false names can also be considered as a ground for a void marriage. The form of solemnization of marriages is also expected to be adhered to.
Lack of consent: The consent of both parties is of utmost importance and cannot be overemphasized. Where the consent of either of the parties was obtained by (i) duress or fraud or (ii) where a party to the marriage is mistaken as to the identity of the other party or as to the nature of the ceremony performed or (iii) that party is mentally incapable of understanding the nature of the marriage contract, such marriage entered into is a void marriage.
Age: The parties to a marriage must be of a marriageable age. Where the parties to a marriage are not of marriageable ages, such marriage entered into is a void marriage. Though the MCA is silent on the marriageable age, this lacuna is filled by the Childs Right Act which sets the age of marriage at 18 years old. As such, all marriages entered into by parties to the marriage who have not attained the marriageable age of 18 years are void marriages.
When a marriage is said to be Voidable
Section 5(1)(a)-(d) of the MCM lists the grounds for a voidable marriage as follows;

Incapability of consummation: A valid marriage can be declared invalid and voidable on the fact that either of the parties is incapable of consummating the marriage. Please note that the wordings of the statute is “incapability” and not “lack” as it is imperative that same should be distinguished. One can be capable of consummating the marriage but fails to consummate same. This scenario will amount to lack of consummation which is one of the grounds for dissolution of marriage. Where one is incapable of consummating the marriage, it is a ground for a voidable marriage.
State of mental health of a party: The mental health of a party to the marriage is important. Where either party to the marriage is (i) of unsound mind, or (ii) a mental defective, or (iii) subject to recurrent attacks of insanity or epilepsy, such state of mental health of such party could be considered as a ground for a voidable marriage. The MCA defines “mental defective” as a person who, owing to an arrested or incomplete development of mind, whether arising from inherent cases or induced by disease or injury, requires oversight care or control for his own protection or for the protection of others and is by reason of that fact, unfit for the responsibilities of marriage.
Communicable venereal disease: Where either of the parties to a marriage is suffering from a sexually transmitted disease, such marriage is a voidable marriage so as to protect the health of the other party against such transmittable disease.
Pregnancy by a person other than the husband: If it is established that the wife is pregnant by a man other than her husband, such a ground is sufficient for a voidable marriage.

Conclusion
Nullity of Marriage and dissolution of marriage differ. Void marriages and voidable marriages can be annulled. If a marriage is affected by any of the afore listed grounds for a void marriage or a voidable marriage, proceedings can be instituted for a decree of nullity of a void marriage or nullity of a voidable marriage, as the case may be. However, parties are implored and advised to explore all areas of settling marital disputes before instituting matrimonial petitions in court. Parties are also advised to look before they leap before committing to matrimony as the sacred institution of marriage is to be preserved.


This article was written by Iberedem Obot, Esq., a Legal Practitioner at The Jubilee Chambers, Uyo, Nigeria
Tel/ whatsapp: +234 708 424 1826
Email: info@thejubileelegal.com
website: www.thejubileelegal.com
link: https://thejubileelegal.com/2023/09/27/nullity-of-marriage-in-nigeria/

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