Legal Wife? Who is She?
It’s popular in the Nigerian parlance especially amongst women in polygamous homes to boast about being the “Legal Wife”, the one whom the law recognises, the one who will get the inheritance and who has the backing of the law.
We see it in Nollywood movies, where a fourth wife for instance pushes the husband to marry her statutorily and when he does, she believes that the other wives are now “illegal” with no entitlements as they are only married to their husband under customary law. Most times, the husband as well often abandons these other wives and their children for the sake of the “legal wife” believing that she has the backing of the law. The other wives as well often withdraw from their roles as wives feeling disenfranchised and cheated. They too believe that the fourth wife is the one who has the “government recognised certificate”.
These notions are false and this article will show you why that is.
First of all, in Nigeria there are three types of legally recognised marriages and customary marriages are one of them, the others are statutory marriage i.e. marriage under the Marriage Act and Islamic marriages.
Section 33 of the Marriage Act provides that where a person is married under customary law such person cannot marry another person different from whom he has married under customary law under the Marriage Act.
For example, if A marries B under customary law, he cannot go and marry C under statutory law. However, A can marry B under statutory law but, after such marriage cannot marry someone else while his marriage with B continues. If he remains married to B under customary law, he is free marry C, D, E, F, G, H, I etc. under customary law, that is not prohibited.
Section 39 of the Marriage Act provides that if a person is in a valid marriage under the Marriage Act, he cannot during that marriage, marry someone else under customary law. If he does, he’ll be liable to imprisonment for five years. It is clear to see from our analysis now that in the Nollywood example given above, the fourth wife’s statutory marriage is not only invalid, but illegal and all the three prior wives are regarded by the law as “Legal Wives”.
A wife under customary law enjoys the same benefits as a wife married under the Marriage Act except for monogamy. Polygamy is expressly prohibited under the Marriage Act. As such if any of the partners goes ahead to take another partner without properly dissolving the first marriage, the previously married partner would be regarded as committing the act of bigamy which is a criminal offence.
Another major difference between Marriages under the Act and other types of marriages is that statutory marriages are marriages of record and easy to prove because the marriage registries have established records (copies of certificates, Marriage Registers, Log Books and the likes) which can be inspected at any time.
Customary marriage can be proved by a statement from the witnesses to the marriage but over time, such witness statements have the possibility of becoming unreliable as it is possible for witnesses to have vague or unclear memories of the event or even forget parts or all of it in total. Also, the witnesses cannot be taken everywhere that a person wishes to prove marriage.
These problems of records however do not take away from the validity of customary marriages. Some simple solutions to the problem of records is to get the some witnesses to make a sworn statement attesting to the fact that the couple married traditionally as well as stating the details of the marriage.
This can be done by the Head of either or both families swearing to an affidavit of facts. The couple can also register their marriages with their respective local government offices or the nearest customary court where such provisions exist.