LAW 3106

Contract of Marriage
 HISTORICAL DEVELOPMENT

• The law relating to marriage is governed by common law and by statute.

• Historically the law did not involve itself too much in the regulation of marriage.
• This lack of regulation is regarded as having led to the term ‘common law wife’.
• Around the 18th century the law became involved in marriage
• Today, legislation sets out a number of rules.
 THE NATURE OF MARRIAGE

An agreement by which a man and a woman enter into a certain legal relationship with each
other, and which creates and imposes mutual rights and duties.

According to Lord Penzance in Hyde v. Hyde (1866) LR 1PD 130, a marriage may be defined
as “the voluntary union for life of one man and one woman to the exclusion of all others”.
• Must be voluntary.
• Must be for life.
• Parties must be of the opposite sex
• Parties must be single
 Parties must possess the legal capacity to
marry and must comply with certain
formalities. Each part must also
voluntarily consent to the marriage.

REQUIREMENTS (a) Capacity to marry - Parties have

OF A VALID capacity to marry if and only if they are
MARRIAGE –

• of at least the minimum marriage age

• respectively male and female
• not already married;
• not within the prohibited degrees of relationship
 (b) Formalities

The formalities to be complied are determined by the

law of the country where the marriage takes places –
lex loci celebrationis.
REQUIREMENTS
O F A VAL I D
M AR R I A G E Rules pertaining to who may solemnise a marriage;
place of solemnisation; time of day; the requirement
for witnesses and the exchange of promises, inter alia.

Presumption as to formal validity. Once the marriage

ceremony has been gone through, certain aspects
cannot be called into question
 REQUIREMENTS OF A VALID
MARRIAGE

(c) Consent must be free

Consent is an essential pre-requisite to the formation of a valid marriage.

If consent is lacking, the marriage will be void.

Consent may be vitiated by duress, fraud, mistake or mental incapacity.

Will be addressed under Annulment of Marriage lecture.

 CONFLICT OF LAWS

Capacity to marry is determined by the law of domicile.

Compliance with the formalities on the other hand, is

determined by lex loci celebrationis.
• In Mohamed v. Knott [1969] 1 QB 1,the parties were both domiciled
Nigerians. The wife was only 13 years old, however as the marriage was
valid in Nigeria , it was valid in the UK. Capacity is determined by the law
of domicile.
 MARRIAGE BY MINORS

Minor must attain the If the parent objects at

minimum marriage age the appropriate point Lack of consent not
and must have parental in the service, then the same as objection
consent marriage must stop

In certain
circumstances, the Parental consent is a
Court may grant the formal requirement
permission to marry.
 MARRIAGE IN ARTICULO MORTIS

Also known as Clinical or Death Bed Marriages.

Provision made for marriages to be solemnized without the stipulated formalities where medical
practitioner certifies, or marriage officer believes at least one of the parties is at the point of death and
party believes that to be the case.

Formalities waived but not capacity, consent and other particular conditions.
Kinneally v. Zazula BB 1975 HC 3
 MUSLIM AND HINDU MARRIAGES

• Notice of intended marriage not required

• both the parties performing marriage must belong to or profess the particular
faith/religion

• Where the rites and ceremonies include the saptapadi (the taking seven steps by the
bride and the groom jointly around the sacred fire), the marriage becomes complete
with the seventh step.

• Marriage must be registered