ANALYSIS OF LEGAL ISSUES INVOLVED IN THE TERMINATION OF “DOUBLE-DECKER’’ MARRIAGE UNDER NIGERIA LAW


Introduction 

And the Lord said, it is not good that the man 

should be alone, I will make him an help mate for 

him 

 

…marry woman of your choice two or three or 

four of them…. 

The above quoted verses are words used by God both in the Bible1

and Quran2

man on earth. Similarly, the Bible3

those whom God has joined. “Likewise in the Quran, Allah4

Those who break the covenants of Allah after ratifying it and tear 

apart what Allah ordered to be joined…they are the ones who are 

losers.’’ 


However, under certain circumstances, separation of couples 

may be necessary. If this occurs, different courts both in the South 

and in the North have jurisdiction to entertain the suit and if 

necessary order divorce. A High Court has the exclusive 

* B.A. (Hons), LL.B (Hons), P.G.D.E.,(Ilorin), LL.M (Ife),BL. Lecturer and 

Coordinator, Business Law Department, Faculty of Law, University of Ilorin. E-
Mail: sakaskydlaw2002@yahoo.com, Phone:08066767646. 

1. See Genesis 2 : 18. 

2. See Quran 4 : 3. 

3. Mathew 6: 19. 

4. Quran 2: 27. 

 to encourage marriage for the continuous existence of 

 says, ‘Let Man not put apart 

 195

jurisdiction to terminate a statutory marriage.5

celebrated under the custom will legally be terminated either in the 

Customary Courts,6

Types of Marriage in Nigeria 

In Nigeria, we have both monogamous and polygamous types of 

marriage. In the monogamous marriage: 

…The law requires that a party to a contract of 

marriage must possess the single status that is, not 

being at the time of promise of marriage, married 

to a third party….8

This was echoed by the Court of Appeal in Wilson v. Carnley9

where it was held that any contract of marriage between an already 

married person to a third party is against public policy and morals 

and is therefore void”. Thus, a monogamous marriage is 

…a marriage which is recognized by the law of 

the place where it is contracted as voluntary union 

of one man and one woman to the exclusion of all 

others during the continuance of the 

marriage….10it is…the legal Union of man and 

woman as husband and wife….11 

Nigerian Current Law Review 2007 - 2010 

 or in the Area Courts.7

 While a marriage 

 

 

 

 

5. See section 82 (1) Matrimonial Causes Act 1970 Laws of the Federation of 

Nigeria (1990) CAP 220. 

6. This in the southern part of Nigeria. 

7. This in the Northern part of Nigeria. 

8. E. I. Nwogugu: Family Law in Nigeria, ( Ibadan :Heinemann Educational Books 

Nigeria Ltd,1985) p: 3. 

9. (1908), KB 729. 

10. See Interpretation Act, Laws of the Federation of Nigeria 2004. 

11. Bryan A. G.: Black’s Law Dictionary, (West group St. Paul Minn, 1999) p. 986. 

Analysis of Legal Issues Involved in the Termination of “Double-Decker” 

Not only that, a monogamous marriage in Hyde v. Hyde12

said to be “the voluntary union for life of one man and one woman 

to the exclusion of all others”. It is ‘’…the legal status, condition 

or relation of one man and one woman united in law for life or 

until divorced….’’13 Any other marriage which allows one to have 

more than one wife is a polygamous marriage.14 Thus, a 

polygamous marriage on the other hand is’’…a voluntary union for 

life of one man with one or several wives….’’15 

It is also pertinent to note that polygamy in Nigeria is a 

customary law institution.16 Therefore, Polygamous system of 

marriage is strictly governed by customary law17. A “customary 

law marriage allows the husband to validly marry other wives 

under it”.18 One of the reasons why people engage in polygamous 

marriage in Nigeria according to Jonnson19 is that: 

Polygamy enables all females to marry and 

safeguarded widows by “widow inheritance” so 

that there was no problem of neglected old 

woman. 

Coker20 also stated that “in the early part of this century, 

monogamy inevitably drove men to adultery particularly in the 

periods when their wives nurse their babies. Aguda21 further 

Marriage under Nigeria Law 

 

12. Per Lord Penzance (1861-1873) All E. R. Rep. 175. 

13. Black’s Law Dictionary 6th Edition (West Publishing Company) pp. 972-97. 

14. Islamic personal Law in Nigeria allows Muslims to have up to four wives at a 

time. 

15. Nwogugu, op.cit, p. xxiii. 

16. Ibid. 

17. Going by the provisions of H/C Law, Sec. 2, Laws of Northern Nigeria, 1963. 

The term customary law generally includes Islamic Law. 

18. The Customary Law Manual 1977, p. 266. 

19. As quoted in Margaret C. O.: Family Law (Spectrum Books Ltd 2003) p. 106. 

20. Coker J. K: Polygamy Defended 1915 Lagos. P. 14 as quoted in Margaret, Op.cit. 

p. 107. 

21. Aguda T. A: Marriage Laws of Nigeria at p. 156 as quoted in Ibid. 

 197

observed that one major problem with the Marriage Act in Nigeria 

is the proscription of polygamy. According to him 

One main thing that made the Marriage Act 

unworkable in Nigeria is the proscription of 

polygamy. 

From the forgoing, one clear deducible fact is that, even 

though polygamous type of marriage is not statutorily recognized 

in Nigeria, it is customarily legal. Thus, either one contracts a 

statutory or customary marriage; the most important thing is to 

celebrate such a marriage according to the prescribed form by 

meeting the essential requirements of a valid marriage.22 

What is a “Double-Decker” Marriage? 

As rightly observed by Abdulmalik23, nowhere in the Marriage Act 

is “double-decker” marriage defined. However, according to him 

“the dictionary meaning of double-decker is a vehicle with two 

decks or a sandwich with two layers of filing”. The word “Double-
decker” is a coinage of Margaret C. Onoka24 which she used to 

describe a type of marriage that 

…involves the celebration by the same couple, of 

a marriage under one system and their subsequent 

marriage under another system…. 

“Double-Decker” Marriage is a chameleonic type of marriage 

which has the flavour and characteristics of both the customary 

and statutory Marriage. All the features that makes customary 

22. For details of these essentials, see Kasunmu and Salacuse: Nigerian Family Law, 

(London; Butterworth,1966), see also Itsey Sagey: Nigerian Family Law; 

Principles, Cases, Statutes and Commentaries, (Malthouse Law Books,1999). 

23. S.M. Abdulmalik: “Double Decker Marriage Under the Nigerian Law”, (Ibadan: 

Lead City University Law Journal, v/m 1 pt. 1, Jan,-June,2008),p:164. 

24. In her book, Family Law, (Spectrum Books Limited, 2003) p. 143. 

Nigerian Current Law Review 2007 - 2010 

 

Analysis of Legal Issues Involved in the Termination of “Double-Decker” 

Marriage under Nigeria Law 

 

marriage to be valid in law also makes a “Double-decker” 

marriage to be valid. And most of the essential requirements of a 

valid statutory marriage to a large extent serve as the requirements 

for a valid “Double-decker” Marriage. 

Reasons for “Double-Decker’’ Marriages in Nigeria 

Since there is no law in Nigeria presently that forbid a double-
decker marriage in clear terms, people tend to believe that their 

tradition makes it imperative and that the two marriages are 

traditionally recognised. In fact 

…The average native rarely fails to carry out the 

prevailing marriage ceremony when taken a 

bride… people speak of a woman acquired 

without the customary marriage ceremonies as a 

lover or concubine….25 

Another reason why people engage in “double-decker” 

marriage is to look for a legal force or security for their earlier 

customary marriage. The non-codification of the customary law 

marriage among the regime of Federal Legislations inevitably 

induces some Nigerians to look at it as mere conventional 

ceremony and that under the Act as one with legal force26, even 

though this notion is wrong.27 

In addition to these, some group of couple contracted double 

marriages as a way of preserving their customs and tradition of 

their fore-fathers.28 This belief is so fanatical among Nigerian 

25. Ibid quoting the words of Ward E.: Yoruba Husband and Wife Code p. 15. 

26. Ibid p. 148. 

27. For Correct position, see Agbede I. O.: “Towards Evolving a Single Marriage 

Law in Nigeria: Prospects and Problems in the Conflict of law” in Olawale Ajai 

& Toyin Ipaye (Eds): Right of Women and Children in Divorce, (Lagos: Franked 

Publishers,1997) pp; 137-146. 

28. As held in Jadesimi v. Okotie Eboh (1996) 2 N.W.L.R. 128 at pp. 147-148, Per 

Uwais C.J.N. 

 

 199

women to the extent that without a traditional marriage, some 

women do not see themselves as properly married. Thus, after the 

traditional marriage, many still contract Act marriage for prestige 

and because of the official purpose the certificate will serve.29 To 

some people, each marriage serves a purpose and the combined 

effect gives solid foundation to the marriage.30 In some instances, 

pressures from the religious circle or sect with which the couples 

and family belong do calls for a contract of double-decker 

marriage.31 

However, recent researches32 have shown that the incidents of 

a marriage celebrated under the Act and a marriage celebrated 

under custom differ considerably. Not only that, the process and 

legal issues involved in the termination of each marriage also 

differs and each cannot be relegated to the background. 

Nigerian Current Law Review 2007 - 2010 

Analysis of the Legal Issues Involved in the Termination of 

“Double-Decker” Marriage under Nigerian Law 

(a) Termination by Divorce 

The argument of the “Conversion theorists’’ was that, once 

couples after their customary marriage undergo a statutory 

marriage, the former customary marriage automatically converts 

its legality to the latter statutory marriage, thus: 

The two marriages do not coexist; the customary 

marriage merges into the ordinance marriage and 

loses all its distinction and characteristics, its legal 

incidents and consequences…33 

29. As held in Ohochuku v. Ohockuwu (1960) 1 ALL ER 253 

30. Ibid. 

31. Abdulmalik, op.cit,(n.23), p:165. 

32. See Sagay I: Nigerian Family Law; Principles, Cases, Statutes and 

Commentaries, (Malthouse Law Books,1999), see also Margaret C. O.: Family 

Law, (Spectrum Books Ltd , 2003). 

33. Odive v. Nweke Obor and Anor (1973) E.C.S. N.L.R. 733 of 735. 

 

Analysis of Legal Issues Involved in the Termination of “Double-Decker” 

Marriage under Nigeria Law 

 

 And to terminate such a marriage by divorce, petition must 

only be presented in the High Court which has exclusively original 

jurisdiction to dissolve statutory marriages.34 The conversion 

theorists believed, as was held in Teriba v. Teriba and Rickett35, 

The true position is that the customary marriage is 

converted by the Act marriage which in effect, 

supersedes it. Therefore, if the Act marriage is 

subsequently dissolved, the customary marriage 

cannot revive. 

 

Nwogugu36 seems to lend credence to this position in his 

submission, when he said the correct position is that a subsequent 

statutory marriage supersedes a previous customary law union. He 

justified his position further by saying that the first relationship 

into which parties enters by solemnizing a statutory marriage is 

one which is unknown to customary law and therefore, a different 

law system will apply to the situation.37 According to him 

…marriage under the marriage Act clothes the 

parties to it with rights and obligations, which are 

un-known to customary law….38 

He submitted further that according to Nigerian law, the 

decree nisi would dissolve both the former customary and 

subsequent statutory marriages. And he concluded that 

 

34. S. (2) (1) M.C.A. 1970. 

35. Suit no 1/211/67 of 2/769 (unreported) Ibadan High Court. 

36. Nwogugu, Op.cit pp. 59-60. 

37. Ibid p. 59. 

38. Ibid. 

 201

...Matrimonial relief can only be sought in respect 

of acts or events which took place after the 

celebration of the subsequent statutory 

marriage….39 

On the termination by divorce, the argument of the “Co-
existence” theorists was that, both the first customary marriage and 

the latter statutory marriage co-exist; both marriages incidents are 

legal and valid. And to terminate such marriage, it has to be 

dissolved differently in different courts. According to them, the 

Magistrate Courts would have jurisdiction to dissolve only the 

initial customary law marriage, while the subsequent Act or 

Statutory marriage is to be dissolved by the High Court. This was 

also the position of the Court in Afonne40 v. Afonne where it was 

held that: 

…Where two legally recognized Marriages are 

involved, the party seeking dissolution and a 

decree of divorce should clearly specify which 

marriage or marriages he or she wants 

dissolved…. 

Thus, going by the Co-existence theory, the dissolution of the 

Act Marriage could not operate as ipsofacto dissolution of the 

customary marriage. To them, if the customary marriage 

terminate, it would not affect the continuance of the statutory 

marriage.41 Because, under our law, there are different legal 

approaches as regards the incidents and their dissolution42.

(a) Termination by Death 

In the event of death of a spouse who contracted a “double-decker” 

marriage especially if it were the husband, 

39. See also the decision in Ali v. Ali (1966) 2 WLR 620. 

40. (1975) E.C.S.N.L.R. 159 at pp: 168-169. 

41. As held in Akparanta v. Akparanta (1972) 2 E.C.S.N.L.R. 779 at 783. 

42. Afonne v. Afonne (1975) E.C.S.N.L.R. 159 at 168-169. 

Nigerian Current Law Review 2007 - 2010 

Analysis of Legal Issues Involved in the Termination of “Double-Decker” 

Marriage under Nigeria Law 

 

…the co-existence theory asserts that although the 

married status of the parties under the Act 

marriage would automatically be terminated, their 

customary law marriage status would require the 

performance of certain acts for its termination….43

Whereas, in the events it was the wife who pre-deceased her 

husband, the widower’s relationship with his parents-in-law still 

subsists especially “where there are issues of the marriage. Thus, 

 

Automatic termination by death of her married 

status under the Act would have no effect 

whatsoever under the customary marriage law. 

She maintains her status as “wife” in her late 

husband’s family.44 

Such a woman may be inherited by the deceased heir and will 

have to remain with the deceased husband’s family. The only 

condition that can make such marriage to be terminated according 

to the co-existence theorist is “until she either re-maries or refunds 

the marriage symbol which her late husband’s family had given to 

The conversion theorists on the other hand are of the opinion 

that the marriage status of the “double-decker” married couple 

comes to an end on the death of either of the spouse. Hence, death 

ipsofacto terminates the marriage relationship of the statutory 

spouses.46 And that is why under the M.C.A. 197047 a party can 

43. Margaret, op cit p. 287. 

44. Ibid. 

45. Ibid. p. 287. 

46. Ibid. p. 230. 

47. S. 15 (2) (h). 

 

 203

file a petition to have marriage terminated on the allegation “that 

the other party to the marriage has been absent from the petitioner 

for such a time and in such circumstances as to provide reasonable 

ground for presuming that he or she is dead”. 

Conclusion and Recommendations 

Conclusion 

From the foregoing discussion, it is clear that the termination of 

“double-decker” marriage is not a straight forward jacket thing. It 

is an action that is fully engulfed in controversy. To the 

conversion theorists, the petition for the termination of double-
decker marriage should lie with the High Court because, the 

customary marriage is converted by the Act Marriage which in 

effect supersedes…48 And in that circumstance, a termination of 

double-deck marriage under the Act automatically ends the 

customary aspect of the marriage. 

However, a critical appraisal of this theory seems not to be a 

true reflection of the people’s perception of the legal status of 

double-decker marriages. It has been stated elsewhere in this work, 

that people engage in double-decker marriages either to preserve 

their tradition or to gain their cultural recognition; and in fact, this 

act pre-dates the Act marriages. For that, it is the humble opinion 

of this writer that, the aim of those people is not to convert their 

customary marriage to a statutory one. More so since both 

customary and statutory laws are recognised in Nigeria, there is no 

basis saying that one law looks powerful or “supersedes” another. 

In Jadesimi v. Okotie Eboh,49 the Supreme Court held that: 

The status of being married under Islamic Law or 

Customary law is well recognized in this country 

and such marriages should not be accorded any 

Nigerian Current Law Review 2007 - 2010 

48. See Teriba v. Teriba and Rickett, suit no 1/211/67 of 2/7/1969 (unreported) 

Ibadan High Court. 

49. (1996) 2 N.W.L.R. 128 at p. 142. 

Analysis of Legal Issues Involved in the Termination of “Double-Decker” 

Marriage under Nigeria Law 

 

status that is inferior to that of marriage under the 

Marriage Act. 

Not only that, going by the Supreme Court Ordinance50 and 

the various High Court Laws of the state, the “native law and 

custom” has equal recognition as enforceable laws. And since 

both are “recognised” as enforceable laws it is the candid opinion 

of the writer that the assertion of the conversion theorists sounds 

weak. It is more reasonable for the High Court to have jurisdiction 

to dissolve the statutory bond of a double-decker marriage and … 

leaving the dissolution of the customary law bond to the 

jurisdiction of the Customary or District Court of a State51. 

A critical appraisal of the stand point of the co-existence 

theorists on the termination of “double-decker” marriage too, that 

if the petition is presented first in the Customary or Area Court, 

either of them would have jurisdiction to dissolve only the initial 

customary law marriage, leaving the Act Marriage to be dissolve 

by the High Court52seems to equally be becloud with practical 

difficulties. The reason being that some of the incidents of the 

customary marriages can not be accommodated by the Act; for 

example, the issue of widow inheritance by the family of the 

deceased which is encouraged under the customary marriage but 

otherwise under the statutory marriage system. 

Furthermore, the fact that none of the legal essentials of a valid 

customary law marriage …is expressly or impliedly mentioned in 

the Marriage Act seems to suggest that the drafts men had not 

intended the operation of any aspect of the incidents of customary 

law marriage to be subject to the operation of any incidents of the 

Act Marriage….53 

 

50. S. 19. 

51. Margaret op cit p. 279. 

52. Ibid p. 278. 

53. Ibid. p. 288. 

 205

 From all the aforesaid, it is clear that the legal issues involved 

in the termination of double-deck marriage in Nigeria are 

enormous. Amongst such issues are: 

(a) The incompatibility between what terminates marriages under 

the Act and what terminate same under the customary law. For 

instance while adultery and intolerability is a “fact” evidencing 

the irretrievable breakdown of marriage under the Act,54 such 

is only a ground for divorce available exclusively to the 

husband under the customary law marriage system. 

(b) The silence of the Marriage Act on the subsequent Act 

Marriage after a customary marriage. 

(c) The non recognition of a double-decker marriage as a class of 

marriage under any Nigerian law. 

(d) A complete adoption of the co-existence theory will bring some 

practical difficulties as discussed in this chapter and a wholly 

adoption of the “conversion” theory may as well produce a 

bigger problems than it solves. 

Recommendations 

Even though Marriage Act does not expressly forbids a couple 

already married under the customary law from subsequently 

marring under it, and the customary law neither frown at the 

subsequent marriage under the Act after the initial customary 

marriage, however due to the unresolved legal issues concerning 

the termination of double-decker marriage and since…a party who 

celebrated a “double-decker” marriage could not have two 

different types of marriage status – one under the customary law 

and the other under the statute….55this writer humbly proffer the 

following recommendations for the improvement on the law as 

regards the termination of “double-decker’’ marriages: 

Nigerian Current Law Review 2007 - 2010

54. See Sec 12 (2) MCA Cap 22 Laws of the Federation of Nigeria (1999). 

55. Ibid. p. 152. 

Analysis of Legal Issues Involved in the Termination of “Double-Decker” 

(a) The Law Makers 

In order to clear the controversies associated with double deck 

marriages, there is the need by the lawmakers to introduce a new 

marriage law that will prohibit dual marriage in Nigeria. The 

passage of such law will curb the extravagant and unnecessary 

spending by couples on a single marriage. Such law will make it 

mandatory for couples to either contract Act marriage,56 or 

contract customary marriage57 only. 

Not only that, since both customary and statutory marriage are 

recognised under the Nigerian law58 as a valid marriage, it is 

further recommended that both the Evidence and Criminal Code 

Act59 be amended and all the rights and privileges ascribed only to 

the benefit of statutory marriage couples therein be extended to the 

benefit of the customary marriage couples too. 

(b) Marriage Registry 

The Registry should embark on a vigorous enlightenment 

campaign to discourage couples from wasting their money on the 

re-celebration of a marriage that has already been celebrated 

customarily. Couples should be educated that… in Nigeria 

Customary Marriage is a legal marriage, a marriage recognised by 

customary law….60and that the re-celebration will not add any 

thing to their status. This will halt or at least reduce the erroneous 

Marriage under Nigeria Law 

 

56. Which will be terminated only in the High Court. 

57. Which will be terminated either in the Area in the North or Customary Court in 

the South. 

58. As was held in Jadesimi v. Okotie Eboh (1996) 2 N.W.L.R. 128 at pp. 147-148. 

59. Especially as regards the issues of competence and compellability of couples in 

evidence against one another and other related issues as outlined in sections, 

161,162 and 164 of Evidence Act CAP 112 Laws of the Federation of 

Nigeria(1990), and section 34 and 36 Criminal Code Act CAP 77 Laws of the 

Federation of Nigeria(1990). 

60. Titi Kehinde: “Divorce Law in Nigeria: A Legal Practitioners view point” in 

Olawale Ajai and Toyin Ipade (Eds): Right of Women and Children in Divorce, 

(Lagos: Friedrich Ebert Foundation, Franke publishers,1997) p: 191. 

 207

belief that it is until when couples contracted a double-decker 

marriage before their marriage can be legal, safe and protected. 

Nigerian Current Law Review 2007 - 2010 

(c) The spouses 

The spouses should have a firm mind whenever contemplating on 

marriage, they should either contract a marriage according to the 

custom which is a customary law marriage, or they should go for a 

pure Act marriage since both are recognised in Nigeria. The 

Supreme Court confirmed this in Jadesimi v. Okotie-Eboh61, that: 

The status of being married under 

Islamic law or Customary Law is well 

recognised in this country…. 

(d) Communities 

Since status of being married under Islamic law or customary law 

is well recognised in this country and since “Native law and 

custom” has equal recognition as enforceable laws,62communities

should be mandated to present certificate to couples as an evidence 

of such marriage in order to allay the fears of marrying couples 

with regard to the documentation of their relationship. 

61. (1996) 2 NWLR 128 at 142. 

62. See section 19 Supreme Court Ordinance No. 4 of 1876.

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