Seeking for divorce under the law for a mere cohabitation Press "Enter" to skip to content

Seeking for divorce under the law for a mere cohabitation

By Dinne Israel

It remains the fact that a person must be legally married in order to obtain a divorce because even the law CANNOT give what it does not have – Nemo dat quod non habet. Living together and appearing to be married in the eyes of the public is not enough to confer married as a marital status on those involved.

No marriage in Nigeria is (shall be) valid where either of the parties thereto at the time of the celebration of such marriage is married under customary law to any person other than the person with whom such marriage is had (this is not vitiated whether or not the other party here is aware of such previous customary marriage).

Also a marriage is null and void if the parties to such marriage goes ahead to; (1) have the marriage celebrated in any place other than the office of a Registrar of marriage or a LICENSED place of worship, (2) celebrate the marriage under false name or names, (3) celebrate the marriage without a Registrar’s certificate of notice or license duly issued, (4) allow the marriage to be celebrated by a person not being a RECOGNISED Minister of SOME religious denomination or body or a Registrar of marriages.

In addition to the above listed which are the provisions of the Marriage Act, is the provision of the Matrimonial Causes Act that in its section 3(1) (c) summarised a great deal the invalidity of a marriage and provided in part that ‘’…a marriage is not a valid marriage under the law of the place (Nigeria) where the marriage takes place, by reason of a failure to comply with the requirement of the law of that place…’’.

Before approaching the court for the determination or resolution of any issue in a marriage, there is a leeway granted by the law which aids to ascertain whether ‘’every wedding translates to a valid marriage’’.

The Marriage Act in Section 30 provides that every marriage Registrar shall keep a Marriage Register Book wherein every certificate of marriage filed in his office in the proper form shall be registered accordingly as they come and that such book shall be indexed in such manner as is best suited for easy reference.

It also graciously provided that ‘’the Registrar shall at all reasonable times allow searches to be made in the marriage register book, and shall give certified copies there-from upon payment of the prescribed fee’’.

It remains the fact that a person must be legally married in order to obtain a divorce because even the law CANNOT give what it does not have – Nemo dat quod non habet.

Living together and appearing to be married in the eyes of the public is not enough to confer married as a marital status on those involved.

No marriage in Nigeria is (shall be) valid where either of the parties thereto at the time of the celebration of such marriage is married under customary law to any person other than the person with whom such marriage is had (this is not vitiated whether or not the other party here is aware of such previous customary marriage).

Also a marriage is null and void if the parties to such marriage goes ahead to; (1) have the marriage celebrated in any place other than the office of a Registrar of marriage or a LICENSED place of worship, (2) celebrate the marriage under false name or names, (3) celebrate the marriage without a Registrar’s certificate of notice or license duly issued, (4) allow the marriage to be celebrated by a person not being a RECOGNISED Minister of SOME religious denomination or body or a Registrar of marriages.

In addition to the above listed which are the provisions of the Marriage Act, is the provision of the Matrimonial Causes Act that in its section 3(1) (c) summarised a great deal the invalidity of a marriage and provided in part that ‘’…a marriage is not a valid marriage under the law of the place (Nigeria) where the marriage takes place, by reason of a failure to comply with the requirement of the law of that place…’’.

Before approaching the court for the determination or resolution of any issue in a marriage, there is a leeway granted by the law which aids to ascertain whether ‘’every wedding translates to a valid marriage’’.

The Marriage Act in Section 30 provides that every marriage Registrar shall keep a Marriage Register Book wherein every certificate of marriage filed in his office in the proper form shall be registered accordingly as they come and that such book shall be indexed in such manner as is best suited for easy reference.

It also graciously provided that ‘’the Registrar shall at all reasonable times allow searches to be made in the marriage register book, and shall give certified copies there-from upon payment of the prescribed fee’’.

Having in mind that our laws and the court which do not forbid the dissolution of marriage will not sacrifice its resolve to dispense with matters that comes to the court as soon as possible and ensuring that in so doing justice is not denied, will also not hesitate to throw into its waste bin any frivolous, futile and unnecessary matter with heavy reprimand where necessary, including matters seeking for divorce where there is an invalid or no marriage in existence.

There is no doubt that as stated earlier, some persons in marriage may not say for sure if their marriage is indeed a legal and valid marriage as some even had to leave their place of residence, place of worship, had all the arrangements towards the marriage made by proxy,

and sometimes abandon their believe just to have their marriages celebrated in a manner that measures up to their desired standard forgetting that every act or omission having a laid down procedure by the law has its consequence(s) where such procedure is complied with or otherwise flouted.

Assuming the procedure to celebrate a valid marriage is tedious and stringent, which obviously is not, Bongos Ikwue in his song ‘’Still Searching’’ rightly said NOTHING GOOD (legal) COMES EASY, THIS I KNOW’’, it will not be out of place for prospective couples to conduct a search at the Marriage Registry, make due and proper enquiry about their partner as this may disclose if such a person is already a marriage partner to another person and also take up the responsibility of looking out for those things listed above which vitiates a marriage in the preparation leading to their wedding/marriage celebration.

Even after the celebration, nothing stops one from going a step further in compliance with Section 30 of the Marriage Act to ensure that the certificate issued to them evidencing the marriage is not only filed but also filed in the proper form at the Marriage Registry.

We shall continue to remember that cohabitation which has been defined as living together and having a sexual relationship AS married means no more than that in the eyes of law, whether the persons involved are intimate, knows that they are cohabiting or not.

To ensure that one is aware of the legal status of his or her ‘’marriage’’, the possible reaction(s) of the court in the event that divorce and other remedies pertaining to marriage are been sought, or their rights where such ‘’marriage’’ was not legally celebrated or properly recorded, a timely consultation with an experienced family law Attorney is invaluable.

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