THE POSITIONS OF LAW ON BIGAMY AND POLYGAMY.

Someone made a post in an online group seeking for opinions of the group members regarding her recent discovery about her husband of many years been in another marriage that has produced children. She sought the opinion of people because, according to her, the house where she and her husband reside was built through her sweat and effort, Meanwhile, the property where the second woman lives was purchased for her by the man whom the legal wife had hitherto had the impression of not being financially buoyant. The wife is confused as to the next step and is afraid that she may lose the house where she lives with her husband and other properties that may have been documented with both names. Be that as it may, some few members of her husband family are behind the acclaimed second wife simply because of their selfish interests and as an opportunity to frustrate the woman.

Then someone posted a comment that their is nothing the woman could do as bigamy as it’s a is a dead letter under the Nigerian Criminal Code especially that the man family members are in support of the second wife. Well, the position of the law is clear about bigamy, polygamy and the like whilst moral position is also clear about it but people can loose moral for selfish interests.

Bigamy still remains an offence under both the Criminal Code Act CAP C38 Laws of the Federation 2010 and the Marriage Act and it is therefore punishable under either of the body of laws. For instance the offence under section 370 of the Criminal Code provides that “Any person having a husband or wife living marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife is guilty of a felony and is liable to imprisonment for seven years.”

However section 33 (1),  of the Marriage Act CAP M7 Laws of the Federation 2010 now amended provides that “ No marriage in Nigeria shall be valid where either of the parties thereto at the celebration of such marriage is married under customary law to any person other than the person with whom such marriage is had.”

Section 35 provides that” any person who is married under the Act or whose marriage is declared by this Act to be valid shall be incapable during the continuance of such marriage of contracting a valid marriage under customary law; but, save as aforesaid, nothing in this Act shall affect the validity of any marriage contracted under or in accordance with any customary law or in any manner apply to marriages so contracted.
Section 39 “Whoever being in marriage goes through the ceremony of marriage under this act with a person whom he or she knows to be married to another person shall be liable to imprisonment for five years.”

Section 47 “ Whoever having contracted marriage under this Act or any modification or reenactment thereof, or under any enactment repealed by this act, during the continuance of such marriage contracts a marriage in accordance with customary law, shall be liable to imprisonment for five years.

Which means that the offence of Bigamy is committed when a married person during the subsistence of that marriage, marries another party while the husband or wife is still alive either when a person married under the Act marries another who is still also married under the Act or where a person married under the Act goes to contract a customary marriage or where a party married under customary marriage contracts a marriage under the act with another party other than whom one is married to.

Now, why aren’t these invalid marriages challenged in court? The answers are simple, ignorance and negligence. Ignorance in the sense that most of the people affected do not know their right and negligence in the sense that most women in the first instance are not legally married, so when the husband take up another wife, it is no longer bigamy but polygamy. To be able to sue for bigamy, the prosecution has to prove that   (1). There was indeed a first legal marriage. (2)The first marriage was valid at the time of the celebration of the second marriage. (3)The first marriage was subsisting when the second marriage was celebrated. That the second marriage was infact celebrated during the subsistence of the first marriage.

Simple as these all seem, any of the grounds require painstaking investigation and valid proofs to sustain. But so many get discouraged, what is more there are in many cases societal sentiments and other pressures even in the midst of glaring evidences to pursue a case of bigamy. So what is the way out in this particular scenario? Now if her suspicions are confirmed that and the husband is actually married to another woman, the type of marriage she contracted and the one her husband contracted with the other woman is in issue. If the union is contracted under the Act, then she only has a good case if she can prove the existence of another marriage. But first she must regularize all her documents to secure the future of her children. And that is why it is very important for every woman to legalize their marriage as no one knows tomorrow, people can change either for good or bad.

Marriage is a social and legal relationship and there are legal regulations to maintain the sanctity of marriage and to prevent actions deemed offensive to public morals. Every legal system, therefore, presents a conception of marriage, which states what validly constitute a marriage, stipulates actions that are wrong, and provides ground for its dissolution.

Although, Nigeria operates a dual legal system, this duality creates a disparity in the application of the law, as the court often has to determine whether to apply the adopted English Common Law or to apply customary law (which includes the Islamic Legal System). With regards to marriage, the law that applies is determined by the form of marriage; whether it is statutory (made under the Marriage Act), or customary.

Any marriage under the Marriage Act is monogamous, as provided by the Act, and proceeding to get married to any person other than the recognized spouse shall render him liable for bigamy. The Marriage Act, therefore, prohibits bigamy and penalizes it.
In a nutshell, you are secured as a woman when your marriage is legally secured.

As for women/men that are illegally married to legally married?

This shall be continued......

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