By Elvis E. Asia
Annie Macaulay-Idibia’s recent social media outbursts about the issue in the celebrity marriage to Innocent Idibia (2face or 2baba) and the furore it has generated raises a subtle but fundamental legal question on the validity of statutory marriage vis-à-vis traditional marriage. While ordinarily, marital highs and lows should be a private affair; Annie has unwittingly invited public scrutiny by her public complaint. This commentary is therefore made within the context of public discussions on the issue.
On September 3, 2021, Annie called out 2face for still spending nights with his babymamas especially Pero Adeniyi, despite being legally married to her. It is important to mention that Pero had three children for the superstar, two of which were already born before the marriage to Annie and the third was on the way at the time of the marriage. Comments generated on the issue include an alleged video by Pero’s father where he allegedly claimed 2face married Pero traditionally before the marriage to Annie. If this allegation is true, the legality of the statutory marriage between Annie and 2baba will be called into question and a whole new legal status may be established in the relationship between the parties.
Validity of statutory marriage where there is a prior traditional marriage
Statutory marriage has many advantages against traditional marriage no doubt. The most significant are a recognised status with easy proof, settlement of property and payment of maintenance in the event of a divorce and clear inheritance rights in the event of the death of either of the parties to the marriage. Unlike statutory marriage, traditional marriage is subject to custom and traditions which are largely unfair to women. The main consequence of customary marriage is that it recognises polygamy. This means that getting married under customary law is practically accepting the possibility that the man can take a second, third or more wives. Secondly, issues such as divorce, custody, settlement of property and inheritance would be decided in accordance with the custom and not the statute. Therefore, no wife has an advantage over the other in a customary marriage as they are entitled to be treated equally as dictated by the relevant custom.
However, Nigeria law recognises the validity of traditional marriage conducted under customary law. Contrary to widely held view, customary marriage is not of lesser status than statutory marriage in terms of legal validity. Hence, section 33 (1) of the marriage Act provides thus:
No marriage in Nigeria 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.
The effect of the above is that a statutory marriage cannot cancel out the efficacy of a proper customary marriage and in fact, such a subsequent statutory marriage to a third party is null and void. To put it more simply, there is no magic wand in a statutory marriage that can displace a prior traditional marriage. The prior traditional marriage remains valid and effective while the statutory marriage has no effect whatsoever. Indeed, the Act makes it an offence for a party who was previously married under customary law to marry someone else under the Act. In this regard, section 46 of the Marriage Act provides as follows:
Whoever contracts a marriage under the provisions of this Act, or any modification or re‐enactment thereof, being at the time married in accordance with customary law to any person other than the person with whom such marriage is contracted, shall be liable to imprisonment for five years.
Implications for Annie, Pero and the other Idibias
The effect of the above legal position is clear. If indeed Pero was married to 2face in the traditional way before the marriage to Annie as alleged, the statutory marriage element of Annie’s marriage to 2face is void and of no effect whatsoever. If there was also a traditional marriage element as it is common in what has been termed ‘double-decker’ marriage, the implication will be that Pero and Annie are co-customary wives and Annie has no legal advantage when push comes to shove.
The possibility of this scenario is not far-fetched. Traditional marriage is conducted by payment of bride price which is a matter of evidence. Hypothetically, all Pero requires are principal members of the family and witnesses who can attest to the fact of the traditional marriage. And of course, you cannot wish away the three children between Pero and 2face. Having three children together coupled with the admitted evidence of continuous relationship between Pero and 2face provide a strong corroboration to the alleged traditional marriage.
Elvis E. Asia is the Managing Partner of LawFuture Partners. He may be contacted at firstname.lastname@example.org
 See section 33 and 35 of the Marriage Act. See also Jadesimi v. Okotie Eboh (1996) 2 N.W.L.R. 128 at p. 142