ABSTRACT
Child Marriage is a topic which has raised so much public outburst and has caused a lot of controversies. It is a topic which comes with it a great deal of public emotions. Child marriage is tied to a number of factors including religion, traditions and customs. Child marriage usually refers to two separate phenomena which are practical in some societies. The first and most common practice is that of a young child being given out in marriage to an adult. In practice, it is almost always a young girl being married to a man. The second practice is a form of arranged marriage in which the parents of two children from different families arrange a future marriage. In practice, the individuals who become betrothed often do not meet one another till the wedding ceremony, which occurs when they are both considered to be of marriageable age. Whether a marriage is to be condemned for falling within the meaning of child marriage depends on whether such marriage is between an adult and a child. In other words, a marriage is enforceable only when it cannot be said to be a child marriage. The question that this raises therefore is, “what is the age limit for a valid marriage?” the answer to this question appears to be uncertain. The law has made an attempt in this regard. For instance in Nigeria, some statutes provide a specific age as the minimum age for marriage. The problem however is that there is no uniformity of application of these statutes. Indeed the law on age limit for marriage in the Southern Nigeria is not uniform with the Sharia law as it applies in some Northern parts of Nigeria. Again, the customary laws of the regions appear to apply different standards for determining marriageable age. This work attempts to examine the different enactments in force in Nigeria and how they apply with regard to marriageable age. It also attempts an examination of the customs of the three major ethnic groups in Nigeria namely Hausa, Igbo and Yoruba, and their practices on marriageable age with a view to determining the validity of theses customs based on the validity tests. The work also looks into the practices of other nations on child marriage and marriageable age. A solution on how uniformity of marriageable age can be achieved will be given at the end of the work. This work is divided into five chapters. Chapter one deals with the general introduction while chapter two deals with the overview of the statutes that provide for marriageable age in Nigeria. Chapter three deals with marriageable age under the Customary law while chapter four deals with the enforceability of age limit for marriage in foreign jurisdiction. Finally, chapter five deals with the conclusion and recommendations.
CHAPTER ONE
INTRODUCTION
- Definition of Terms
- Age
Age is defined as a span of years during which some event occurs.[1] It is also defined as the number of years something has been alive or in existence.[2] Age has also been defined as a period of time, especially one marking the time of existence or the duration of life.[3]
- Age Limit
An age limit is the oldest or youngest age at which you are allowed under particular regulations to do something.[4] It is also defined as the age at which a person is allowed or not allowed to do something.[5]
- Child
This word has two meanings in law: (1) In the law of the domestic relations, and as to descent and distribution, it is used strictly as the correlative of “parent,” and means a son or daughter considered as in relation with the father or mother.[6] (2) In the law of negligence, and in laws for the protection of children, etc., it is used as the opposite of “adult,” and means the young of the human species, (generally under the age of puberty,) without any reference to parentage and without distinction of sex.[7] A child also means every human being below the age of eighteen years unless, under the law applicable to the child, majority is attained earlier.[8]
- Child Marriage
Child marriage is a formal marriage or informal union entered into by an individual before reaching the age of 18.[9] It is also defined as any marriage of a child younger than 18 years old in accordance to Article 1 of the Convention on the Right of the Child.[10]Child marriage, defined as a formal marriage or informal union before age 18, is a reality for both boys and girls, although girls are disproportionately the most affected
- Marriage
The legal status, condition, or relationship that results from a contract by which one man and one woman, who have the capacity to enter into such an agreement, mutually promise to live together in the relationship of Husband and Wife in law for life, or until the legal termination of the relationship.[11]Marriage is also defined as the civil status of one man and one woman united in law for life, for the discharge to each other and the community of the duties legally incumbent on those whose association is founded on the distinction of sex.[12]
- Types of Marriages in Nigeria
There are three types of marriages legally recognized in Nigeria.
- The Customary Marriage
- The Civil/Statutory Marriage
- The Islamic Marriage
1.2.1 Nigeria Customary Marriage
There are various ethnic communities in Nigeria and the various ethnic groups have their different marriage customs. There are however some generally accepted customs common to most of them which will be discussed here.
Marriage under customary law creates a relationship not only between a man and woman but also between the two families involved.[13] The wife is regarded by the members of her husband’s family as having been married not solely to her husband but into the family and therefore a member of their family.[14] The husband on the other hand is not so regarded by his wife’s maiden family, even though there exist a continuing relationship with that family.
Marriage under Customary Law is largely polygamous. A polygamous marriage is the union of one man with several wives. There is no limit to the number of wives a man can marry under customary law.[15]
After intentions to marry has been communicated between the two parties concerned and also between their respective families, discreet inquiries may be carried out by each of the families in order to discover facts about the parties. These facts may sometimes be based on the family’s social and health background as well as the character of the party. For example, investigations may be carried out to find out if the family concerned has any contagious or hereditary disease such as mental illness; whether the person concerned has bad habits such as stealing or lying; or whether the family concerned belongs to the system of outcasts known as Osu(amongst the Ibo’s). Some of the facts found may constitute bars to the proposed marriage.
The law insists on the payment of the bride price in other to have a valid marriage. However it doesn't insist that the payment must be completed before the marriage can take place. But part payment must be made before a valid marriage can be performed. And in practice this is what happens. For some states and communities the payment of the bride price is in different stages and the man can do one stage and request to come back at a stipulated time or when he can to complete the payment of the bride price. And the woman will be considered married and they are allowed to start their lives as husband and wife.
In most states and communities in Nigeria, the bride price is payable to the father. In the absence of the father it is payable to the male head of his immediate family. In the absence of a male head, it is payable to a guardian.
In practice the customary marriage is referred to as the traditional marriage. The Yorubas call it the engagement.
The formal traditional ceremony is where the groom brings all that he's been asked to bring in the bridal list he was given. And the elders of the bride's family conduct the ceremony and accept the bride price. After which there's a lot of eating and drinking.
The traditional marriage is compulsory. The paying of the bride price to marry a woman is the oldest ceremony for having a valid marriage. In Nigeria and as a Nigerian, without it, the society doesn't consider you married even if you go to court to register your marriage and get a marriage certificate.
1.2.2 Nigerian Civil Marriage
Nigerian civil marriage also known as statutory marriage and popularly known as court wedding in Nigeria is where the couple registers their marriage under the Marriage Act of Nigeria and obtain a marriage certificate.
This type of marriage is in accordance with the Marriage Act which is a federal legislation which makes provisions for the celebration of marriages in Nigeria. It is clear that the Act is designed only for the celebration of marriage between a man and a woman, and the marriage has to be a monogamous one. A monogamous marriage has been defined in section 18 of the Interpretation Act as follows:
A marriage which is recognized by the law of the place where it is contracted is a voluntary union of one man and one woman to the exclusion of all others during the continuance of the marriage.
A civil marriage is compulsory because it offers security to the woman and her unborn children. The wife has rights under the law as legally married to her husband.
The civil ceremony doesn't involve much and it takes very little time. You can get married within an hour and on any day of the week. All you'll need are two witnesses, one for the bride and one for the groom.
1.2.3 Islamic Marriage
Islamic marriage like customary marriage is a polygamous one which allows the man to take up to four wives if he desires. It possesses most of the features of customary law marriage already discussed.
1.2.4 Other marriage ceremonies
- Religious marriage - AKA White wedding
Religious marriage ceremony is simply to bless the marriage. For some doctrines however it is more than that. It's especially to make the couple aware of the seriousness of the commitment they are making and remind them of the guidelines for a successful marriage as offered in the holy book, the bible.
Marriage after all is a divine institution. And there's a standard set forth in the Holy Scriptures for its success. The religious marriage is optional. Many couples are doing without it.
The white wedding is supposed to be a combination of the religious marriage ceremony and the wedding reception party. But some are now having white wedding without the religious ceremony but instead have the court wedding and after have a reception party.
For a religious marriage to be legal it must be licensed and recognized by the state. Usually churches that conduct weddings need to get approval from the state. This way, a person having a religious wedding doesn't have to go to the court to register and collect a marriage certificate; this is made available to them through the church.
- Child Marriages in Nigeria
In Nigeria, particularly northern Nigeria has some of the highest rates of early marriage in the world. The Child Rights Act of 2003 sets the national legal minimum age of marriage at 18. To be effective, however, state assemblies must take necessary measures to implement the Act, and to date, only 23 of Nigeria’s 36 states have taken concrete steps to execute the minimum age of marriage.[16]
While data shows a 9% decline in the prevalence of child marriage since 2003, action is needed to prevent thousands of girls from being married in the coming years.
To further complicate matters, Nigeria has three different legal systems operating simultaneously—civil, customary, and Islamic—and state and federal governments have control only over marriages that take place within the civil system.[17]
Nationwide, 20 percent of girls were married by age 15, and 40 percent were married by age 18. Child marriage is extremely prevalent in some regions; in the Northwest region, 48 percent of girls were married by age 15, and 78 percent were married by age 18. Although the practice of polygamy is decreasing in Nigeria, 27 percent of married girls aged 15–19 are in polygamous marriages.[18]
Consequences of Child Marriage
- Child marriage is a fundamental violation of human rights. Many girls (and a smaller number of boys) are married without their free and full consent. By international conventions, 18 years has been established as the legal age of consent to marriage.[19] If the timing of marriage does not change, over 100 million girls will be married as children in the next ten years.[20]
- Child marriage is closely associated with no or low levels of schooling for girls. In West and Central Africa, girls with three or fewer years of schooling are five times more likely than girls with eight or more years of schooling to marry before age 18.[21] Poverty leads many families to withdraw their daughters from school and arrange marriage for them at a young age. These girls are denied the proven benefits of education, which include improved health, lower fertility, and increased economic productivity.[22]
Child marriage, in many instances, marks an abrupt transition into sexual relations with a husband who is considerably older. The younger a bride is,the more likely it is that she enters marriage asa virgin, and the
[1] Retrieved from www.yourdictionary.com/age accessed on 21/05/2014
[2]ibid.
[3] Webster’s New World Dictionary (New Jersey: Wiley Publishing Inc, 2010) p. 145
[4] Collins English Dictionary (Glasgow: Harper Collins, 2011) p.255
[5] Cambridge Advanced Learner’s Dictionary and Thesaurus (London: Cambridge University Press, 2008) p. 132
[6] B.A. Garner (ed.), Black’s Law Dictionary, 8th ed. (St. Paul Minasota: West Group, 1999)
[7]Miller v. Finegan, 26 Fla. 29, 7 South.140, 6 L. R. A. 813.
[8]Article 1 of the UN Convention on the Rights of the Child
[9] Retrieved from www.unicef.org/protection/57929_58008.html accessed on 21/06/2014
[10]Retrieved from http://www.forwarduk.org.uk/key-issues/child-marriage accessed on 21/06/2014
[11]ibid.
[12] B.A. Garner (ed.), Black’s Law Dictionary, 8th ed. (St. Paul Minasota: West Group, 1999)
[13]M. B. Anzaki, “Types of Marriages under Nigerian Law”, retrieved from http://thelawyerschronicle.com/types-of-marriages-under-nigerian-law/ accessed on 18/07/2014
[14]ibid.
[15]ibid.
[16]Retrieved from http://www.girlsnotbrides.org/child-marriage/nigeria/ accessed on 21/6/2014
[17]Center for Reproductive Law and Policy (CRLP). 2001. Women of the World: Laws and Policies Affecting their Reproductive Lives (Anglophone Africa). New York: CRLP.
[18]Retrieved from http://nigeria.unfpa.org/nigeirachild.html accessed on 21/6/2014
[19] See, among others, The Universal Declaration of Human Rights (1948); The Convention on the Elimination of All Forms of Discrimination Against Women (1979); The Convention on the Rights of the Child (1989); and The African Charter on the Rights and Welfare of the Child (1990).
[20]2002 Population Council analysis of United Nations country data on marriage.
[21]Demographic and Health Survey (DHS) data on 20–24-year-olds. Analyses conducted in 2003 by Barbara Mensch for the National Academy of Sciences; B.S.Mensch, et al.,“Trends in the Timing of First Marriage among Men and Women in the Developing World,” paper presented at the 68th Annual Meeting of the Population Association of America, Minneapolis, 1–3 May2003.
[22]Population Council. 1995. “Accelerating Girls’ Education: A Priority for Governments,” Fact Sheet compiled for the Fourth World Conference on Women, Beijing, 4–15 September; B.Herz, and G.B. Sperling, What Works in Girls’ Education: Evidence and Policies from the Developing World(New York: Council on Foreign Relations,2004)
