Enforceability of Age Limit for Marriage in Nigeria
CHAPTER ONE
OBJECTIVE OF STUDY
In Africa, three different legal approaches have been adopted in so far as child marriage is concerned. There are those countries which criminalize premature, early or child marriages;[1] those which ban or invalidate marriage below the legally prescribed minimum age;[2] and those which merely prescribe a minimum age of marriage without expressly criminalizing or banning it, even though the consequence may be the same as express prohibition of child marriage.[3]
CHAPTER TWO
OVERVIEW OF STATUTES GOVERNING MARRIAGEABLE AGE IN NIGERIA
Domestic Laws
Marriage Act
The Marriage Act does not define or lay down any mandatory age of marriage or lowest limit of the age of marriage. This vacuum is not only important but also fundamental which requires immediate remedial action. Before 1970, when the Matrimonial Causes Act became effective in Nigeria, one school of thought held the view that the lacunae in the Marriage Act could be filled by applying the law and practice for the time being in force in England.[1] Whatever may be the validity of this point of view, the possibility of its application has been lost since 1970 Matrimonial Causes Act came into force banning the application of English Law. The other point of view is to the effect that common law rule will apply to age of marriage.[2] Both by cannon law and at common law, a valid marriage could be contracted only if both parties had reached the legal age of puberty, which is fixed at fourteen for boys and twelve for girls.[3] If either party was under this age when the marriage was contracted, it could be avoided by either party when that party reached the age of puberty but if the marriage is ratified (as it could impliedly be by continued cohabitation) it became irrevocably binding.[4] It is perhaps surprising that this remained the law until well into the present century. In the words of Pearce J., “According to modern thought, it is considered socially and morally wrong that persons of an age at which we now believe them to be immature and provide for their education should have the stresses, responsibilities and sexual freedom of marriage and the physical strain of child birth. Child marriages by common consent are believed to be bad for participants and bad for the institution of marriage.[5]
Matrimonial Causes Act
The Matrimonial Causes Act does not also define or lay down any mandatory age of marriage or lowest limit of the age of marriage. It only provides in Section 3 that for a marriage to be valid under the Marriage Act, the child must be of marriageable age but specifies no particular age.
The Constitution
There is no provision providing the age of marriage under the Constitution[6] but Section 29(4) impliedly approved child marriages. This section has to do with renouncing of citizenship. Section 29(4) (a) and (b) of the Constitution provides that full age means the age of eighteen years and above. However, it went further to state that any woman who is married shall be deemed to be of full age. This provision has the effect of ratifying or approving an otherwise illegal marriage where a girl between ten and seventeen years is married either forcefully or with her consent. This is a bad provision in the Constitution.
CHAPTER THREE
MARRIAGEABLE AGE UNDER THE CUSTOMARY LAW
The parties to a customary-law marriage must possess the capacity under that law to marry each other.
In Nigeria, customary law does not generally lay down any lower limit for marriage or betrothal.[1] The general age of marriage is maturity of the parties coupled with their financial ability to raise a home. Betrothal in ordinary English sense is an agreement to marry somebody[2] but under customary law of Marriage in Nigeria, it is an arrangement whereby a young or infant girl is promised to be given in marriage to a man or a male child.[3]
Most systems of customary law in Nigeria do not prescribe any age for the solemnization of customary-law marriage. This lacuna in the rule of customary law has to a large extent encouraged a high incidence of child marriage, with all its attendant evils. While in some areas child betrothal is rampant, marriage does not in fact take place until the parties have attained the age of puberty.
Igbo Custom
In some parts of the country, the minimum age for customary-law marriage has been fixed by legislation. The age of marriage under customary law is governed in the three Eastern States of Nigeria by the Age of Marriage Law 1956.[4]This law is made applicable to marriage under customary law.
Section 3(1) of the Law provides that ‘A marriage . . . between or in respect of persons either of whom is under the age of sixteen shall be void’. If a party to such a void marriage is charged with any of the sexual offences under the Criminal Code arising from having unlawful carnal knowledge of a girl, it is a good defence to prove that the accused had reasonable cause to believe that the girl in question was his wife.
CHAPTER FOUR
Enforceability of Age Limit for Marriage in Foreign Jurisdictions
USA
The laws regulating marriage are quite uniform. The right to marry is considered very personal, and once the “age of majority,” or when one can marry without the permission of a parent or guardian, is reached, it is the couple’s sole decision whether or not to marry. However, below this age, parental consent is required (though states do not require the consent of a parent or guardian who is not present in the country or who has abandoned his or her child). The age of marriage in USA varies by State, but is generally 18. There are, however, two exceptions – Nebraska (19)[1] and Mississippi (21).[2] The age of majority is now universally eighteen, except in Mississippi, where the parties need to be twenty-one.
While only three states, California, Kansas, and Massachusetts, have no statutory minimum age under which marriage licenses will not be issued, many states with a minimum age requirement do permit marriages between minors under that age. Virtually all states allowing the marrying of minors require court approval in addition to parental consent.[3] A growing number of states now require counseling for minors seeking to marry. Provisions for underage marriages exist in order to permit pregnant minor females and/or couples to marry, and prevailing code language still clearly reflects that bias. Ohio has the most explicit rule on this issue. In that state, the juvenile court is authorized to grant official consent to the marriage of underage persons, and the probate court issues the license. According to Ohio statutes, the probate court may delay issuing the license until the court is convinced that the female is pregnant and will carry the child to term or may even delay issuance of the license until the baby is born.
England
Until the middle of the 18th century marriages could take place anywhere provided they were conducted before an ordained clergyman of the Church of England. This encouraged the practice of secret marriages which did not have parental consent and which were often bigamous.[4]
It also allowed couples, particularly those of wealthy background, to marry while at least one of the partners was under age. The trade in these irregular marriages had grown enormously in London by the 1740s.[5]
CHAPTER FIVE
CONCLUSION AND RECOMMENDATIONS
Conclusion
It is important for any given country to have a minimum age of marriage as this legally protects children from abuse, harm, violence and exploitation (especially sexual exploitation). Article 2 of the African Charter on the Rights and Welfare of the Child (ACRWC) and Article 1 of the Convention on the Rights of the Child (CRC) define a child as a person aged below 18. Marrying off persons aged below 18 therefore amounts to child marriage and this is a harmful practice which must at all cost be prohibited, as it curtails children’s right to education, reduces their chances of survival by putting their health at risk, and hampers national development, among a myriad of other negative consequences.
As a harmful practice, child marriage is prohibited by international and regional standards. When the ACRWC was adopted in 1990, one of its unique features was the entrenchment of Article 21(2), which provides that ‘child marriage and the betrothal of girls and boys shall be prohibited and effective action, including legislation, shall be taken to specify the minimum age of marriage to be 18 years and make registration of all marriages in an official registry compulsory’. Even though both girls and boys fall prey to child marriage, in most cases it is girls who are the victims. Thus, most societies adopt discriminatory practices by sending boys to school and giving girls into marriage. This is contrary to the protection provided by Article 21 of the ACRWC. To further ensure that girls are protected from such practices, the African Union in July 2003 also adopted the African Women’s Protocol, whose Article 6 sets the minimum age of marriage for women at 18 years and prohibits harmful practices. Similarly, Regional Economic Communities have also stressed the importance of having a minimum age of marriage that is not below the age of 18 as demonstrated by the 2008 SADC Protocol on Gender and Development which provides in Article 8(2) that ‘ legislation on marriage shall ensure that: no person under the age of 18 shall marry’.
Recommendations
Specialized courts are needed. Children who marry under customary law should be able to seek recourse through the formal justice system. Child marriage may in most cases not infringe the customary law under which the child was married unless the law specifically provides for a specific minimum age for those who marry under customary law, and that minimum age of marriage under customary law has been infringed, in which case, the marriage may be nullified and damages may be claimed by the girl (but this is very unlikely). Therefore, the best recourse for the child is the formal justice system where the child may claim compensation in the form of damages, or where the ‘partner’ may face criminal sanctions in systems where child marriage has been prohibited and criminalized. For example, in the Comoros, where the minimum age of marriage is 18, Section 299 of the Comoros Penal Code (1982) provides that ‘whoever, when it comes to consummation of a marriage under the traditional law has done or attempted to perform the sexual act on the person of a child under 13 years of age or immature will be punished by two to five years imprisonment’. Thus, while recognizing traditional marriages, the law provides for special protection for children aged below 13, such that it is not a defence to claim that one has been married to the child under the customary law regime. This form of legislation should be incorporated in both the Criminal Code and the Penal Code.
If all African countries respect and meet their obligations under the ACRWC, first of all to take legislative measures by setting 18 years as the minimum age of marriage; secondly to take other measures by ensuring that systems are in place for protecting children from entering or being forced to enter into marriage; and thirdly, to submit periodic reports to treaty bodies on how they are actually ensuring that children are protected from marriage, the rate of child marriage would be significantly reduced and societal attitudes would easily be changed to understand that it is a violation of children’s rights to allow or force them to get married before the age of 18.
In compliance with the above Charter and the UN Convention, the Child’s Rights Act 2003 was enacted by the National Assembly. Section 21of the Act provides that “No person under the age of 18 years is capable of contracting a valid marriage, and accordingly, a marriage so contracted is null and void and of no effect whatsoever.
The Child Rights Act of 2003 is in conformity with the universally accepted age of marriage and it has taken into consideration the best interest of the child in all aspects like right to health, education, dignity and right to protection from sexual abuse. The incidence of VVF which is common in the Northern part of Nigeria could be prevented if this law is domesticated by all states of the Federation.
Nigeria being a member of the United Nations Organization and African Union, we have a duty or obligation to respect conventions and charters ratified by our National Assembly or government.
REFERENCES
- Kiely, M. (ed.), Reproductive and Perinatal Epidemiology (Florida: CRC Press, 1991)
- Kline, et al.,Conception to Birth: Epidemiology of Prenatal Development (New York: Oxford University Press, 1989)
- B.S. Mensch, et al.The Uncharted Passage: Girls’ Adolescence in the Developing World (New York: Population Council, 1998)
- Herz, and G.B. Sperling, What Works in Girls’ Education: Evidence and Policies from the Developing World (New York: Council on Foreign Relations, 2004)
- I.E. Nwogugu, Family Law in Nigeria (Lagos: Heinemann Books, 1999)
- S.A. Adesanya, Law of Matrimonial Causes (Ibadan: University Press, 1973)