HOW PRACTICE OF CUSTOMARY MARRIAGE IS NAVIGATING UNCHARTED WATERS OF THE LAW IN NIGERIA

Abstract

Customary marriage laws, profoundly entrenched in tradition and culture, have for extended periods of time served as a pivot for shaping marital unions in many African societies, particularly in Nigeria. For any system of marriage to be valid under customary law, its nature must conform to the prevailing customs and practices of the tribe where the bride comes from, like in private international law; the rule lex loci celebrations i.e. the law of the place where the marriage is celebrated applies to such a customary marriage. This criterion is an essential validity amongst other things, in deciding whether or not a customary marriage has taken place. Thus, customary law governs the character and incidents of that system of marriage and no single uniform system of the law prevails throughout Nigeria.  Essentially, customary marriage possesses three main features of customary law; it is unwritten, it is a mirror of accepted usage and wherever it applies, its rules may change with time. This is attributable to unwritten customs and traditions passed down through generations and recognized by the communities as binding. This paper acknowledges that customary law practice, in its sphere of operation, admits changes of its rules, which are elastic in its formation and features, while ensuring that customary marriage laws align with contemporary values and global legal trends. The authors argued that customary law marriages have evolved with contemporary challenges of the times. Nowadays, without evidence of payment of bride price or handing over of the bride to the groom’s family, where the parties to a marriage are adults with requisite capacities and can produce evidence to substantiate their intentions, Nigerian courts readily accord the status of customary law marriage on them, provided the parties are persons of repute and have substantially lived together as husband and wife by cohabitation.