WHAT IS ANNULMENT OF MARRIAGE?
Annulment is a legal procedure within secular
and religious legal systems for declaring a marriage null and void. Unlike divorce, it is usually retroactive, meaning that an annulled marriage is considered to be invalid from the beginning almost as if it had never taken place (though some jurisdictions provide that the marriage is only void from the date of the annulment.
In legal terminology, an annulment makes a void marriage or a voidable marriage null.
THE LEGAL DIFFERENCE BETWEEN ANNULMENT OF MARRIAGE AND DIVORCE.
a. Annulment or nullity of marriage could be distinguished from the dissolution of marriage in that, in the case of nullity of marriage, the marriage is invalid ab initio or voidable at the instance of one party, while for the dissolution of marriage, the marriage is brought to an end because the marriage has broken down irretrievably.
b. A petition for an annulment of void marriage can be filed at any time and that of voidable marriage can be filed one year after the marriage based on some grounds, a petition for a divorce cannot be filed when the marriage is less than two years except with the leave (permission) of the court.
c. The petition for annulment of marriage can only be filed based on limited instances or reasons stipulated in the statutes, but the divorce petition can be filed under the extended fact of “intolerable behaviours” among other reasons.
d. Only parties to a marriage can file for a petition for dissolution of marriage, but the petition for nullity or annulment of marriage can be filed by any interested third party whose legal interest may be affected by such a marriage.
e. When a marriage has been annulled, the couple becomes single again as if they have never married before, but after a divorce, the couple will become a divorcees.
GROUNDS FOR A MARRIAGE TO BE VOID.
According to Section 3 of the Matrimonial Cause Act, the grounds on which a marriage celebrated after the commencement of the Act may be void ab initio are set out as follows:
1. WHERE THERE IS AN EXISTING LAWFUL MARRIAGE:
Where either of the parties to a marriage is at the time of the marriage lawfully married to another person such marriage will be null and void. Even where a customary law marriage precedes a statutory marriage with a different person, the marriage will still be null and void.
Section 33 (1) Matrimonial Causes Act 1970 provides that:
“No marriage in Nigeria shall be valid where either of the parties thereto at the time of the celebration of such marriage is married by native law or custom to any person other than the person with whom such marriage is had.”
The marriage under this subsection must be proved with a high degree of certainty to invalidate the marriage on the ground of a previous marriage under customary law.
NOTE that where parties to a subsisting customary marriage contract a subsequent statutory marriage, the marriage shall not be void.
2. PROHIBITED DEGREES OF CONSANGUINITY OR AFFINITY: Consanguinity is a marriage contracted between parties who are related by blood, while affinity is the marriage of a man with a person to whom he is related through marriage.
The prohibited degrees of marriage were dealt with in Section 3, First Schedule and Section 115(1) of the Matrimonial Causes Act 1970.
Thus, by Section 4 Matrimonial Causes Act 1970, in some circumstances, it may be possible for a person within the prohibited degrees of affinity to marry each other with the consent of a High Court Judge.
3. INVALIDITY BY THE LEX LOCI CELEBRATIONIS (LAW OF THE PLACE OF CELEBRATION): An annulment of marriage in Nigeria under a void marriage can be by reason of failure with the form prescribed by the lex loci celebrationis. This provided for by Section 3 (1) (c) of the Matrimonial Causes Act 1970.
By the provision Section 33(2) Matrimonial Act 1914:
‘A marriage shall be null and void if both parties knowingly and wilfully Acquiesce in it celebration’ without compliance with some formalities prescribed by the Act”.
A marriage is void under this provision if it is clearly shown that both parties to the marriage had knowledge of the defect in the formalities but willfully agreed to its celebration.’
For a marriage to be void under this sub-heading the following must be considered:
PLACE OF CELEBRATION:
By Section 33(2) (a) of the Matrimonial Act 1914, a marriage contracted under the Marriage Act must be celebrated in a Registrar’s office or a Licence place of worship or a place prescribed in a Special Licence. Any marriage celebrated in any other place than this will be void ab initio.
i. Celebration of Marriage under false name or names.
ii. Celebration without a Certificate or a Special Licence.
iii. Marriage not celebrated by a minister of a religion or a Registrar of marriage.
iv. marriage under the Act must be celebrated either by a recognized minister of some religious denomination or body or by a Registrar of marriages.
Failure to comply with the requirement makes the marriage void ab initio.
LACK OF CONSENT
Where neither of the parties to marriage consents freely to the union, the marriage is invalidated.
The following factors negate a party’s consent to a marriage:
I. FRAUD OR DURESS
Fraud is where there is dishonest misrepresentation by a party to the marriage by which the consent of the other was obtained, while duress is when a party to the marriage is compelled to contract such marriage by creating a state of fear or apprehension, which prevented the party from freely consenting to the marriage. Where consent is proved to have been obtained by fraud or duress, the marriage is annulled not because of the presence of fraud or duress but because of the absence of consent.
By virtue of Section 3 (1) (d) of the Matrimonial Causes Act 1970, where the consent of a party to the marriage is not a real consent because that party is mistaken as to the identity of the other party or as to the nature of the marriage performed. The mistake of that party will make the marriage void ab initio. It is not every type of mistake that will invalidate a marriage. If a party voluntarily marries the other party thinking that the marriage is full of fortune and it turns out after marriage that the other party is a debtor, the marriage will not be declared invalid simply because of that reason. The second part of the mistake contained in Section 3 (1) (d) (ii) of the Matrimonial Causes Act 1970, is one as to the nature of the marriage ceremony performed between the parties.
Where the consent of one of the parties is not real because that party is mentally incapable of understanding the nature of the marriage contracted, the marriage is null and void.
IV. MARRIAGEABLE AGE
Under section 3 (1) (e) of the Matrimonial Causes Act 1970, If either of the parties is not of marriageable age the marriage is null and void. The Marriage Act of 1914 or The Matrimonial Causes Act 1970 did not prescribe any marriage age.
Under the Child Rights Act and Child Rights Law of many states in Nigeria, a person up to 18 years of age is considered to be an adult and of marriageable age.
To be continue..
Precious Eti is a Legal Practitioner