Dissolution of a Statutory Marriage Based on Exceptional Depravity (Marital Rape) in Nigeria

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By Oyinlola Agunbaide

There are institutions, but there is no such institution as marriage. In the league of institutions there are, marriage has a place and position which cannot be similized or even have its identity stolen by any other institution. This is not just because it serves as a foundation of continuity in human existence, but also its unity. That is, the system and structure by which marriage is defined has being the bedrock of man’s continuing existence and its progression as well as its population. By virtue of this identity, marriage is almost peerlessly regarded and profoundly revered in every society in the world. This reverence and respect which is shown and showered on it is wontly displayed through jubilation of all ilks to celebrate the advancement of the parties embracing a lifetime together and signing a marital contract to that effect.

With its powerful profile, it is not unexpected that such a concept has a well-prepared place also under the legal firmament. In different legal systems, there are frameworks which are designed and dedicated to address marital relationship and affairs. By virtue of classification, marriage may have different characters. These characters are dependent on the society which are covered and coordinated by that legal system. Under the Nigerian Legal system, marriages are of three characters, viz, statutory marriage, customary law marriage and Islamic law marriage. This severalty in the nature of marriages which existed under the Nigerian legal space is premised on the pluralistic nature of the Nigerian Legal system. Yet, it is to be noted that despite these distinction in identity, all of these forms of marriage since they are legally founded are concomitant with a marriage certificate. Simply put, where consummated and conducted, a signed marriage certificate signed must be issued to the parties by whoever stands with the authority to do so. This may be the minister in the place or worship, the registrar in the registry, or any other who is so authorized in that regards.

Although marriages, unlike the state in George’s Orwell animal kingdom, are not more important than the other, however, it may well be said that statutory marriage is the most profound and prolific. Such an observation is not based on void and vacant premise but rather on the nature of the legal framework and foundation on which it stands. In ordinary legal parlance, Statutory marriage is a marriage anchored by the court of law and the parties to the marriage/union are guided by the rules stated under the law, not least, the Marriage Act and Matrimonial Causes Act. Providing a foundation for identification for this type of marriage, Section 7 of the Marriage Act provides that statutory marriage is conducted when one of the parties to the intended marriage signs and gives to the registrar of the district in which the marriage is to take place a notice as stated in Form A in the First Schedule. The observation of such process and prerequisite as stated by the law means that as such doing, a statutory marriage is initiated. Yet it is of mighty importance to note that as ordained by Section 21 of the Marriage Act, statutory marriage may be conducted and contracted in any licensed place of worship and where the parties deem fit to do so before a registrar as provided for in Section 27 of the Marriage Act. Permit it to be accentuated here that by virtue of the constitution and composition of Nigeria, the marriage recognized under the statutory marriage is the monogamous marriage i.e. the marriage between one husband and a wife; anything to the contrary will be a contravention of the ordainment of the law.

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However, outwith the Marriage Act, the Matrimonial Causes Act 1970 which is enforceable in Lagos -although not the exclusive law governing statutory marriage in Nigeria having in cognizance the Marriage Act- also makes provisions as to marriage affairs. Enacted in 1970, the Matrimonial Causes Act exist for the sole purpose of dissolution of marriage, custody and the welfare of children in Nigeria. In fact, one of its offspring which was made in its likeness christened the Matrimonial Causes Rules 1983 set out the rules to govern cases such as divorce, legal separation and procedure for instituting actions for the dissolution of marriage. It is to be noted at this point that while the nature of the Matrimonial Causes Act does not dethrone the Marriage Act as the main legislation regulating marriage in Nigeria, hence, serving as the legal foundation and framework for regulating the manner in which marriages recognized under the Act can be conducted as provided for in the Act such as that seen in Section 6,7,9,10,11,12 and 27 of the Act, places where statutory marriage can be conducted, regulatory bodies to marriage, marriage certificate, and the different kind of marriages which are under the Nigerian Legal firmament and also not affecting the status and stature of the Marriages Validation Act as that designed to regulates the celebration of marriages in various part of the country.

Verily, law is not void and cannot possibly exist in voidness. Understanding that while marriages are sacred and an embracement of the parties to the union of one another till death do them part, there are certain situations where the commitments of the party under the contract which they entered into may be up for re-consideration. This stage where trouble enters paradise may eventually deteriorate to it taking full control and charge of paradise and the once rosy and relished union a relic of all that it ever used to be. This is the point where a dissolution of that union commonly epitheted divorce is initiated and instituted. For some, such may be by the joint agreement of both parties, for some others, such may be by the sole decision of one party to the union. Understanding that reality is real and that there is not anything that can be done to repress it, the law provides for the processes that must be followed by the parties to depart that once happy union.

The first of this process as provided for by the Law is that situated in the territory of Section 15 of the Matrimonial Causes Act where it is observed that a petition for the decree of dissolution of marriage may be presented to the court by either of the parties to the marriage and that such must be on the almighty condition that the marriage must have broken down irretrievably. Accentuating on this almighty condition, Subsection 2 of this section provides that for a proceeding of dissolution of marriage to be heard by the court, the petitioner must have satisfied/convinced the court that the marriage has broken down irretrievably based on certain grounds including but not limited to willful and persistent refusal to consummate or complete the marriage, commission of adultery, sodomy etcetera by the respondent, the respondent acting in a way in which the petitioner cannot reasonably be expected to live with the respondent anymore e por a vai.

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Yet, in spite of these grounds, Subsection 30(1) of the Act provides that a marriage merely two years since consummation cannot be dissolved unless by the leave of the court. This ordainment of the law is wontly regarded as the two years’ rule. Simply, the purpose and purport of this rule is to prevent couples from dissolving their marriages at any given opportunity without trying to dedicate any effort to its sustenance and survival. To cement the potency of this rule, it is observed that even the proceeding for the dissolution of such a marriage shall not be instituted without the leave of the court. However, it is worthy of note that Section 30(2) of the Act provides for certain situations under which the provisions of Section 30(1) shall not apply to Section 15 and Section 16(1). This is further strengthened by Section 30(3) which provides for the only ground in which a court would institute a proceeding on dissolution of marriage without the leave of the court. This sole and sacred ground, it is to be noted, is when the refusal to grant the leave would impose exceptional hardship on the applicant/petitioner or the case involves exceptional depravity on the part of the other party i.e. the respondent to the marriage.

While these grounds are laudable for reasoning and reason, it patently brushes off another important ground for which marriages should be so dissolved without the leave of court at any point in time into the marriage. This ground is that of marital rape. That is, marital rape should be a basis for the dissolution of statutory marriage provided in Section 15(2) (a-g) and Section 30(3) MCA 1970, as the offense of rape certainly expresses and even transcends exceptional hardship, and where such in fact occurs is an incontrovertible reflection that the marriage has broken down irretrievably. The institution of marriage is that which is premised on the agreement of those who entered into and embraced the union. It is to be noted at this point that the grave offense of rape is premised on the absence of consent as provided for and observed by Section 357 of the Criminal Code Act. That is, where there is any sexual penetration of the body of another without their consent or a consent acquired by force, threat, etcetera. Hence, it needs no long or super-powerful logic to conclude that what is an offence should be a ground for voiding any legal union. This is so as any party to the marriage forcefully gaining sexual access to the body of the other is not generally legal under the law. Yet, it is an observation of native wit that what is illegal cannot at the same time be legal. That is, a legal conducted and consummated union cannot continue to be so defined where there is an introduction and perpetration of illegality by a party to the union. Simply put, the law cannot be an accessory to what it was created to combat; otherwise it becomes as guilty as the guilty.

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Independently of voiding a marital union on the grounds of rape, the ordainment that marital rape is not an offense under the Nigerian Law is nothing but the law attacking and shielding the same act, such is a classic case of the prosecution’s counsel doubling as the defendant’s counsel. Such is patently a legal contradiction and conflict that will verily result in miscarriage and malfeasance of justice. The law cannot therefore conceive and at the same time also contradict. In fact, the almighty grundnorm in the ‘person’ of the Constitution of the Federal Republic of Nigeria did not fail to recognize the sanctity of the human body not least by recognizing the inalienable right to dignity of human persons as provided for in Section 34(1) which provides that no human shall be subjected to inhuman or degrading treatment. It is therefore logical that individuals should not be stripped of that dignity merely because their only crime is being in a marriage which has lost its glory. In fact, observing that those in marriage are not entitled to enjoy this inalienable right is another contravention of the fundamental right to freedom from discrimination as provided for in the terrains of Section 42 of the Constitution as well as several other human right treaties to which Nigeria is a party to.

Marriage has and will always be a cause of celebration and happiness for man, regardless of the culture of and composition of the society where it is conducted and celebrated, if nothing more, it is a reflection of unity and a reminder that there is always something to be happy for in humanity, not forgetting the joy (children) that comes with such union. However, it is a contravention of all that is real and rational to continuously patch the cracks of and consistently paint a structure where the fault is exactly with the foundation. Truly, the union of marriage is a sacred one, where the sanctity which defines it is however defiled, the contract has been breached and the law can only do well to enforce same, even if it does not penalize the party that occasion the breach and defiling that sacred union.

Oyinlola is a final year law student of Lagos State University. oyinlola2027@gmail.com

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