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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