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Administration of Estates Law 2: The Challenges of Customary Marriage

By Ebun-Olu Adegboruwa, SAN

On Friday, January 17, 2020, the Supreme Court handed down a decision which highlighted the dangers of customary marriage, in the case of Delphine Zikere Okonkwo v. Amaka Ezeaku & Administrator-General/Public Trustee, Enugu State.

In this case, a Senior lawyer contracted a marriage under native law and custom in 1976 and the couple had one female child. Subsequently in 1988 the couple separated and remained so till the death of the Senior lawyer in 2005.

The marriage was not formally dissolved in accordance with the native law and custom under which they got married. During the period of the separation, the Senior lawyer got married to another woman in 1992, under native law and custom and they had two children.

Sometime in 1988, he swore to an affidavit wherein he deposed inter alia that the latter woman was his lawful wife and that he had no other wife. Upon his death without a Will, his estate was placed under the management of the Administrator-General/Public Trustee.

The first wife, standing on her marriage with the deceased which was not formally dissolved, sought to partake in the distribution of the estate of the deceased as managed by the second wife. The case traveled from the High Court to the Supreme Court, which court held that the affidavit of the deceased was not sufficient, as it did not in any way expropriate the estate of the deceased to his second wife. The court held that without a formal dissolution of the customary marriage to the first wife according to native law and custom before contracting another marriage also under native law and custom, the first wife is entitled to partake in the sharing of the estate of the deceased.

I received several comments from well-meaning Nigerians in reaction to the first part of this piece, all of which are posted hereunder, unedited.

ABIODUN AKINBIYI

“Erudite write up sir. However, it is rather incredulous and unbelievable that the apex court, that is, the Supreme Court, will appropriate a woman as a chattel to be shared after the death of her husband, even if this is the undoubtedly popular practice in some Yoruba communities, albeit, the said practice is on the decline due to enlightenment and development.

I must acknowledge that it is actually prevalent in the Yoruba native laws and customs where for instance, a woman after the death of her husband is betrothed to the younger brother of the deceased.

Meanwhile, a reasonable person would have believed that this is where the respective strata of the law courts come in handy to address such anomaly, especially with respect to the letters and spirits of section 42 of the Constitution, which unequivocally and unambiguously provide for right to freedom from discrimination.

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On the whole, I agree ABSOLUTELY with your proposition, postulation or advice that marriages be contracted under the Marriage Act, rather than native laws and customs.”

FOLAYAN MARTINS OLAMIJU

“Learner silk, you have said it all but my point of disagreement is the issue of marriage under Native Law and Custom. I prefer to say that culture is dynamic and our customary marriage and traditions are no exemption.

What we should do is to move away from those aspects that are not in tandem with modernity. Part of the problems of the black race today is disregard for that which belongs to us to embrace foreign culture.

We are suffering from that inferiority complex today as other races feel superior to the black race. Customary marriage reinforces African solidarity among other advantages. Marriage under the Act promotes individualism.”

BAAMOFIN MUYIWA KUSIMO

“Sir, you got it wrong in the aspect of downplaying the protection afforded a woman married under a customary marriage compared to statutory/legal marriage. Most especially the misconception as regarding ownership of properties in a statutory marriage, you hear many women say things like “I am his lawful wife, everything he owns is my own!” Shock alert – that is erroneous, since the passage of the Marriage (Women Property) Act of 1882, women who hitherto to the law cannot own property except through their husbands, are now equally entitled to own properties as they can afford and as they please.

Your husband’s or wife’s property does not automatically become your property because you underwent a statutory marriage with him or her, all the titles of his/her properties are his/hers and his/hers alone, he/she can gift it to anyone while he/she is alive or will it to anyone other than you in his\her will. Statutory marriage does not confer property rights of one spouse on the other just by virtue of the celebration of a statutory marriage.

Also, another misconception is that many Nigerian women and now some men, go into a “court” marriage and many more are eager to go into a “court” marriage under a lot of damning misconceptions and illusions. They see purported rights that are in fact non-existent or misconstrue the rights that do indeed exist.

These women then get into the marriage only to realize that it was in fact worthless and the security they thought it would provide was in fact elusive and they end up being frustrated and deadly angry. Many of these women go into or demand “court” marriage thinking that in a “court” marriage their husbands would not dare cheat on them, or hit them, something they believe was prevalent in a customary marriage, they are then confronted with the reality that it does happen and the only rights they have in such a situation is a right to file for a divorce and get the share of their own contribution in the marriage, a right they would still have had if they had married under customary law.

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Some others, who are generally called gold diggers, go into it thinking they will be financially protected by undergoing a “court” marriage, a form of alternative to hard work; we now have men who also now are eager to get into a court marriage with rich women majorly for the reason of her wealth they are in popular culture called ‘gigolos.

Another popular misconception is that statutory marriage is the only legal marriage in Nigeria which I perceive therein your justification and benefit of having same in your write up. Hence, in my opinion is another detached from reality.

You hear single Nigerian women say things like “Legal marriage or nothing!” or the married ones saying, “I am your legal wife!” Unfortunately, there is a trembling misinformation out there that statutory marriage is the only legal marriage in Nigeria. So, women who are married under the customary law, though they are the only wife of their husbands are made to feel unmarried or half or partially married!

Sometimes because of the damage already done, you hear a woman who is fully married under the Nigerian custom telling you that I am married but not “lawfully” married! I have through social interactions have had many responses to that effect. This is really an uncharitable situation and a slap on the Nigerian culture which has developed over the years on its own and many times through the help of the Nigerian Court system to recognize the equal rights of women and men.”

My response to Baamofin Kusimo

Sir, I thank you most exceedingly, for finding time to read this piece and to dignify it with such detailed response. I have taken note of your comments sir.
I would humbly urge you to note the following sir:

1. I did not say that customary marriage is illegal sir, but the implication thereof, in law. Indeed, section 33 of the Marriage Act makes it illegal for anyone already marriage under customary law, to contract a statutory marriage. The snag here is the crisis of polygamy, both in law, faith and by tradition.

2. By virtue of section 35 of the Marriage Act, statutory marriage is protected as purely between one man and one woman and no subsequent union can be contracted by either of them. I expressed preference for statutory marriage for the following reasons:

A. By virtue of section 39 of the Marriage Act, an unmarried person cannot contract a valid marriage, with a person already married under the Act;

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B. By virtue of section 11 of the Wills Law, statutory marriage under the Marriage Act will validly revoke any Will, other than a customary marriage. In other words, a surviving spouse of a person married under the Act can validly challenge a Will made against his or her interest. Customary marriage is specifically exempted under section 11 of the Wills Law.

3. Marriage (Women Property) Act of 1882 was wrongly interpreted by the High Court of Oyo State sir, in the light of extant Supreme Court decisions on the matter.

Please see the case of Akinnubi v Akinnubi (1997) 2 NWLR (Pt.486) 144, decision of the Supreme Court of Nigeria, delivered on Friday, 31st January, 1997, long after the 1882 Act.
I reproduce part of the judgment in Law Pavillion here under:

AKINNUBI & ANOR V. AKINNUBI & ORS
(1997) LPELR-352(SC)

“Now, under Yoruba customary law, a widow under an intestacy is regarded as part of the estate of her deceased husband to be administered or inherited by the deceased’s family; she could neither be entitled to apply for a grant of letters of administration nor to be appointed as co-administratrix of her deceased husband’s estate.” Per ONU, J.S.C.(P.22, paras.B-D) CITED CASES
Bolaji v. Akapo & Ors. 2 FNR 241 at 245.

I’m very much obliged for your comments sir and offer myself humbly to learn more from you to enrich our jurisprudence, on this subject.
God bless you sir.

Funmi Komolafe

“Thanks Barrister Adegboruwa for this. Even in official entitlements men or women who begin work as singles never remember to change their next of kin, thereby leaving the spouse and children to suffer when they die suddenly. No right thinking parent should marry of a daughter under customary laws and this should be a lesson for women who get themselves in a polygamous marriage where the marriage under the English law still exits. Pardon my lay man use of words. Indeed, there is a lot to amend here. Perhaps, a law should compel anyone who is forty to have a will either he or she has property or not. Even shares should be a subject of this law.

If you recall, it was the legal marriage issue that the wife of a former Governor used to secure the body of her husband in England and bury him. Though, the man had been co-harboring with another woman.

Relations are most unreliable on issues that you stated for their selfish reasons. I wish that you and other progressive lawyers make a case for compulsory will. After all, everyone born of a woman will die someday.

Thank you so much for raising this discourse. God bless you. Stay safe. I hope you know this writer. I know you though.”
What do you think?

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