COURSE TITLE: FAMILY LAW 1

COURSE CODE: LPT 311

LECTURER- IN- CHARGE:

GROUP: GROUP 8

QUESTION: THE MARRIAGE CONTRACT

LIST OF STUDENTS IN THE GROUP WITH THEIR MATRIC NUMBERS

BOROKINI DOMINION ADEOLUWA. LAW/2020/1037

ADELEKE SUBOMI AYOMIDE LAW/2020/1011

OGA THERESA LAW/2020/ 1056

MOSES ENOCH JESUTOFUNMI. LAW/2020/1053

ADETUNJI EYITOLA ELIZABETH. LAW/2020/1018

OGUNSOLA PRECIOUS ABOSEDE. LAW/2020/1059

OMITA EBUNOLUWA MODUPE. LAW/2020/1074

TABLE OF CONTENT

INTRODUCTION

What is marriage?

What is contract?

What is marriage contract?

ELEMENTS OF A VALID MARRIAGE CONTRACT

RIGHTS ENJOYED IN A MARRIAGE CONTRACT

DUTIES IMPOSED BY MARRIAGE CONTRACT

BREACH AND REMEDIES OF MARRIAGE CONTRACT

DEFENCES TO BREACH OF MARRIAGE CONTRACT

TERMINATING A MARRIAGE CONTRACT

CONCLUSION

REFERENCES
What is Marriage?

Marriage is a legally and socially sanctioned union, usually between a man and a woman, that is
regulated by laws, rules, customs, beliefs, and attitudes that prescribe the rights and duties of the
partners and often accords status to their offspring(s).

Marriage, also called matrimony or wedlock, is a culturally and often legally recognized union between
people called spouses. It establishes rights and obligations between them, as well as between them and
their children, and between them and their in-laws.

Black’s law dictionary defines marriage as; “The legal union between one man and onewoman”.

The court in the celebrated case of HYDE V HYDE1 gave a definition of marriage. It was defined as the
voluntary union for life, of one man and one woman, to the exclusion of all others.

What is a Contract?

This is an agreement made between two or more parties, whereby legally enforceable rights and
obligations are created. They are a promise or a set of promises whereupon violation, legal recourse is
provided, or compliance is acknowledged by law as an incumbent obligation.

SAGAY, a renowned professor of law defines a contract as an agreement which the law will enforce as
affecting the legal rights and duties of the parties involved”2

The court adopted this definition in the famous case of ORIENT BANK (NIG.) PLC V. BILANTE INT’L LTD3

What is Marriage Contract?

Marriage contract can be defined as a contract, according to the form prescribed by law, by which a
man and a woman, capable of entering into such a contract, mutually engage with each other to live
their whole lives together in the state of union which ought to exist between a husband and a wife.

Marriage contracts are a special form of contract whereby a duty of good faith is placed on both parties
during negotiations. Thus, a key necessity of marriage contracts is financial disclosure. Your partner
must be told about all your income, assets, debts, and liabilities, at the time of the agreement.

FEATURES OF A VALID MARRIAGE CONTRACT

1
(1886) LRIP&D 130

2
(Sagay, Nigerian Law of contract).

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[1997] 8 NWLR (Pt. 515) 37
1. OFFER: All valid contracts must start with an offer. Simply put, an offer is a definite proposal from one
person to another, to enter into a contract (marital contract in this context) with the clear intention of
being bound by the terms if accepted by the other party.

An offer could be made orally, evidenced in writings, or inferred from parties’ conduct. Although there
are no formal requirements for a marriage contract, the offer must be communicated in clear terms
without ambiguity, thereby giving the other party an opportunity to either accept or reject the proposal.

It is pertinent to point out that not all romantic gestures or expressions of love are legally regarded as
indications of intent to marry. In fact, cohabiting as a couple is not a covert offer.

Unlike other forms of contracts, where a unilateral offer made to the whole world,[5] a promise to
marry can only be made to a specific person.

2. ACCEPTANCE/GENUINE CONSENT OF THE PARTIES:

Since a contract involves two parties, there must be a mutual agreement to the terms (consensus ad
idem). Therefore, it is of the essence that an offer to marry is accepted by the person to whom it is
made. A promise made by one person to marry another is not binding unless and until there is a
reciprocal promise by the other party to marry the first person. Similar to an offer, such acceptance
must be definite, absolute, unconditional, and communicated back to the offeror that the offer has been
accepted in its exact terms.

S361 of the Criminal Code also resonates this assertion. It provides that - "Any person who, with intent
to marry or carnally know a female of any age, or to cause her to be married, or carnally known by any
other person, takes her away, or detains her against her will, is guilty of a felony, and is liable to
imprisonment for seven years. "

3. INTENTION TO ENTER INTO A LEGAL RELATION: Even though an offer has been made and accepted,
failure to prove intent to be legally bound renders the contract null and void, and the courts will refuse
to enforce it. It is not enough to show that a promise was made to marry, but also prove that the
promisor intended for the promise to be legally binding on him or her at the time of making it.

This element which is sine qua non to a marriage contract was aptly captured by the dictum of Niki Tobi
JSC in EZEANAH V ATTA4 where he stated that “…an agreement to enter into a marriage should leave
nobody in doubt as to the real intention of the parties to enter into a marriage. A mere convivial or
romantic relationship without more is not enough for a court to found an agreement to marry”

The intent is determined by the facts and circumstances of each case, and once genuine intent to marry
can be established, it will not matter if a party did not intend to be legally married. All that matters is
whether a reasonable person can infer from your acts and conduct that you intended to be married
when you made the promise.

4
(2004) LPELR- 1198(SC)
4. CAPACITY: The law will never enforce a contract entered into with a party that lacks the contractual
capacity to do so. Only people who are legally capable of marrying each other can enter into a contract
of the promise of marriage. The law is that a minor, a drunken person, or a person of unsound mind
cannot contract.

At common-law, only contracts for necessaries could be enforced against an infant. This is provided for
in Section 5 Infants Relief Act, and also reiterated by the court in the cases of NASH V. INMAN,5 AND
LABINJOH V. ABAKE6

5. AGE: Although the Marriage Act does not expressly stipulate the marriageable age in Nigeria, section
18 of the Act implies that the legal age is twenty-one. The Child Rights Act of 2003 pegged the
marriageable age at eighteen years, however, the Act does not apply across all states in Nigeria. Our
main concern notwithstanding is that parties must have attained the marriageable age fixed by the
applicable laws.

S21 Child Rights Act posits age eighteen (18) as the legally acceptable age for marriage. It provides that
"No person under the age of 18 years is capable of contracting a valid marriage, and accordingly a
marriage so contracted is null and void and of no effect whatsoever marriage so contracted is null and
void and of no effect whatsoever".
S22 also prohibits child betrothal while S23 of the same Act goes on further to provide for the
punishment for child marriage and betrothal- "........ fine of N500,000; or imprisonment for a term of five
years or to both such fine and imprisonment".

6. PARENTAL CONSENT: This is necessary where the parties are below the age of 21 and must be in
writing.

S48 of the Marriage Act provides for parental consent where the parties marrying are under the age of
twenty one (21). It provides that "Whoever, knowing that the written consent required by this Act has
not been obtained, shall marry or assist or procure any other person to marry a minor under the age of
twenty-one years, not being a widow or widower, shall be liable to imprisonment for two years".

Where the parties are above 21 years of age,Parental consent is not required as held by the court in the
case of UGBOMA V NORAH

7. SINGLE STATUS: Parties to a marriage contract must not be married to somebody else.

SECTION 35 OF THE MARRIAGE ACT provides that one cannot contract another marriage whilein a
subsisting one. Doing such can amount to bigamy.Such person is liable for imprisonment for 5 years
under S47, Marriage Act. Section 3 of the Matrimonial Causes Act also goes on to state that such
marriages are invalid.

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(1908) 2 KB 1

6
(1924) 5 NLR 33
In the case of SPIERS V. HUNT7, the court refused to enforce a promise of a married man to marry
another lady who knew he was married on grounds of public policy and the doctrine of ex turpic ausa
non oritur action.

However,.In FENDER V. ST JOHN MILDMAY the court upheld the promise by a married man to marry
onthe basis that the decree nisi obtained for his subsisting marriage showed that there was little left of
the marriage.The promisee can plead that she was ignorant of the promisor’s marital statusand that she
is not in pari delicto.

8.CONSIDERATION: A contract must be supported by consideration from both parties for it to be

enforceable. You must have given or forborne something in return for your spouse’s promise of
marriage.

9. RULE OF CONSIGNUITY AND AFFINITY: Consignuity means any relationship by blood while affinity
refers to the relationship arising by virtue of marriage.

The law forbids the marriage of persons related by blood or by marriage. Consanguinity is marriage by
two parties who are blood related. For example, uncle and niece, brother and sister Aunty and nephew.
While Affinity is marriage between two parties who are related by marriage. For example, step father
and daughter, sister in law and brother in law. However, marriage by affinity may be permitted if the
consent of court is given upon request stating that some things have transpired that makes it impossible
for both parties involved to stay apart. e.g. the lady has been put in the family way.

10. Same sex:

Matrimonial causes Act and Marriage Act also forbids marriage to persons of same sex.

DUTIES IMPOSED BY MARRIAGE CONTRACT

The institution of marriage is a fundamental aspect of Nigerian society, and it is crucial to make sure
that the rights and obligations of both husbands and wives are effectively safeguarded. The rights and
obligations of spouses are regulated by various laws and legal principles in Nigeria and in order to
support women’s equality and marital empowerment, Nigerian laws have undergone considerable
changes.These laws aim to protect the rights of both parties, promote equality, and provide a
framework for the functionality of marriages and family units

.Under Nigerian law, the duties imposed by a marriage contract include:

Mutual Respect and Support: Both spouses are obligated to respect and support each other,
contributing to the emotional and financial well-being of the family.

Faithfulness and Fidelity: There's an expectation of faithfulness and fidelity between the spouses,
maintaining loyalty and exclusivity within the marriage.

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Parental Responsibilities: If children are involved, both parties are responsible for the care, upbringing,
and education of the children.

Contribution to Household: Both spouses are typically expected to contribute to the maintenance and
management of the household, whether financially or through other means.

Shared Decision-Making: Decisions affecting the family should generally be made jointly, considering
the interests and welfare of all family members.

These duties form the foundation of the marital relationship, ensuring mutual respect, support, and
collaboration between spouses.

RIGHTS ENJOYED UNDER MARRIAGE CONTRACT

The rights of Spouses as recognized under the Nigeria law include:

Equality in Marriage:

The principle of equality between spouses is a crucial aspect of Nigerian family law. The Matrimonial
Causes Act and the Violence Against Persons (Prohibition) Act incorporate equality in marriage. Under
the Marriage Act 2004, spouses are regarded as equal partners in marriage. This means that husbands
and wives enjoy equal rights and responsibilities within the marital union, including decision-making,
financial matters, and child-rearing.

The Nigerian Constitution also guarantees equality before the law for both spouses. Neither spouse
should be discriminated against based on gender. Spouses should have equal rights to property, assets,
and resources acquired during the marriage. The Matrimonial Causes Act acknowledges the equal
contributions of both spouses to the acquisition and management of marital property.

The Right to Personal Security and Safety:

Nigerian law recognizes the rights of both husbands and wives to be free from violence and abuse within
the marriage. Domestic violence, whether physical, emotional, or sexual, is a serious concern that
affects many marriages and is strictly prohibited. The Violence Against Persons (Prohibition) Act of 2015
provides comprehensive legal protection against all forms of domestic violence, including physical,
sexual, emotional, and economic abuse allowing victims to seek redress and obtain restraining orders
against their perpetrators.

Inheritance Rights:

Nigerian law has made significant strides in ensuring gender equality in inheritance rights. Equal rights
regarding inheritance are granted to husbands and wives under different states’ succession laws in
Nigeria, such as the Lagos State Law of Inheritance (2004). This implies that upon the death of either
spouse, both spouses, regardless of gender, are entitled to an inheritance from their spouse’s estate.
For example, Section 46 of the Administration of Estates Law of Lagos State, 2015, governs the mode
of distribution of the residuary estate of a deceased person who died intestate.

Right to the dissolution of Marriage:

Section 15 of the Matrimonial Causes Act 2009 provides for the ground for the grant of a decree of
dissolution of marriage. This means that either spouse can file for divorce on various grounds such as
adultery, cruelty, desertion, or irreconcilable differences. The law also allows for separation orders and
judicial interventions to promote reconciliation.

Right, to own property in Nigeria:

Property rights within a marriage depend on the type of marriage. Under statutory marriages, the
Matrimonial Causes Act governs the distribution of property in the event of divorce or separation.

Customary law, on the other hand, often reflects the patrilineal nature of inheritance, which may affect
the property rights of wives. However, recent legal reforms have sought to address gender imbalances
by promoting equal property rights for women. The case of Mojekwu v. Mojekwu (1997) the landmark
case on equal property right for women in Nigeria, Supreme Court held that women have a right to
inherit property from their fathers. The court emphasized that the customary law that denied female
children the right to inheritance was discriminatory and inconsistent with the principles of the Nigerian
Constitution. This verdict upended long-standing practices and established a precedent for women’s
equal property rights.

The constitution also recognizes the right of citizens to own property in Nigeria. Section 44(1) of the
Constitution explicitly states that no person shall be compulsorily deprived of his or her property, except
in the interest of public necessity and subject to the payment of just and adequate compensation.

Right to Maintenance and Support:

During the marriage, Spouses are legally obligated to provide financial maintenance and support to each
other. The Marriage Act of 2004 acknowledges couples’ obligation to contribute to each other’s well-
being, including financial assistance for basic necessities, healthcare, and education. This provision
ensures the well-being and stability of the marital relationship.

Ultimately, it is important for spouses to be aware of their rights under the Marriage Act to ensure that
their union is based on mutual respect, equality, and understanding. Legal counsel and advice should be
sought when dealing with specific issues related to marriage rights to ensure compliance with the
applicable laws and regulations.

BREACH OF MARRIAGE CONTRACT

One should be able to successfully prove that;

The defendant made a voluntarily promise to marry the plaintiff.

The promise was not kept.The plaintiff may corroborate the allegation with evidence.The breach may be
in the form of,

(A) Non-performance

(B) Anticipatory breach.

NON-PERFORMANCE occurs when the promisor absconds on the fixed date or fails to perform within a
reasonable time.

In MARTINS V. ADENUGBA. On the fixed date for the marriage, the defendant went into the marriage
registry alone(without the plaintiff) and came out declaring that they have been married. The plaintiff
believed him and cohabited with him for 3 years. She was entitled to recover damages.Where the
promise is conditional, it is inoperative until the condition has been fulfilled.

In AIYEDE V. NORMAN-WILLIAMS, The defendant promised to marry the plaintiff if he could obtain his
father’s consent.The court held that failure to get the fathers consent invalidated the promise

.ANTICIPATORY BREACH: where the defendant declares his intention not to perform his contractual
obligation, he willfully makes it impossible to perform his promise. For example, by marrying someone
else.

In the case of USO V. OKETUBOSUN The defendant had went ahead to marry another lady after
promising to marry the plaintiff.It was held by the court to be a breach of the promise to marry.

DEFENSES TO BREACH OF A PROMISE TO MARRY.

The promissor may then allege that,

(A)The promise was obtained by fraud, duress or misrepresentation: Vitiating elements that render
contracts unenforceable may serve as a defence to breach of promise to marry. Where consent is
obtained by mistake, misrepresentation, duress and undue influence, the element of consent stands
negated and renders the marriage void for lack of consent.This defence is legally backed up by S3(1)(d)
of the Matrimonial Causes Act.

(B) The promise had been mutually discharged by agreement: Since a contract only comes into existence
by the agreement of contracting parties, it can also be discharged or terminated by the agreement of
the same parties. This is expressed in the latin maxim ‘eodem modo quo oriter, eodem modo dissolvitur’
meaning, ‘what has been effected by agreement can be undone by agreement’.The promisor can allege
that the promise has been dissolved by mutual agreement.

after the promise, of apermanent infirmity that can render the plaintiffunfit for marriage. Mere
suspicion is not enough. Based on the facts of the case. Canthe defendant claim that he is infirm? InHall
v. Wriththe judges were divided as towhether the person suffering from the infirmity could plead. We
can submit that it alldepends on the facts of the case. Gamble v. Siles.
DAMAGES FOR BREACH OF MARRIAGE CONTRACT.

After the court has found that there has been a breach of promise to marry, it can neverforce the
defendant to marry the plaintiff (specific performance). The only thing theycan do is to award damages
to the plaintiff. Subject to the remoteness of damages andthat which flow directly from the breach and
was within the contemplation of the partiesat the time of the promise. The gifts given in contemplation
of marriage can be forfeited,including the engagement ring. Note theEnglish law reform (miscellaneous
provisions)Act which abolished breach of promise to marry and made provisions for recovery of gifts.

CONDITIONS THAT CAN RENDER THE MARRIAGE CONTRACT VOID/VOIDABLE

S5 of the Matrimonial Causes Act provides for the grounds on which a marriage contract may be
nullified and terminated.

Incapability to consummate the marriage

Unsoundness of Mind, Mental Disorder and Recurrent Attacks of Insanity or Epilepsy: where either party
suffers from any of this, a decree can be sought to nullify the marriage.

Where the wife is pregnant by a person other than the husband.

Where either party to the marriage is suffering from a venereal disease in a communicable form;

Bigamy. This is also backed up by S33 Marriage Act

Incapacity to contract

Under age marriage

Forced consent

Consanguinity and affinity

Invalidity by The Lex Loci Celebrationis(Law Of The Place Of Celebration: A marriage is regarded as void
where the parties fail to comply with the form prescribed by the law of the place where it was
contracted as regards the solemnization of marriage.

TERMINATION OF A MARRIAGE CONTRACT

Contractual termination is the process of ending a contract before the obligations within it have been
fulfilled by all parties. In Nigeria, the dissolution of a marriage contract can be achieved through various
legal processes depending on the circumstances:
Annulment: If a marriage is void or voidable (such as in cases of fraud, force, or incapacity), it can be
annulled, effectively rendering the marriage contract null and void.

Divorce: This is a legal process to officially end a valid marriage. In Nigeria, divorce can be granted based
on various grounds recognized by law, such as adultery, cruelty, desertion, or irreconcilable differences.

Termination by Agreement: If both parties agree to terminate the marriage contract, they can do so by
mutually consenting to a dissolution and reaching a settlement on matters like property division,
custody, and support.

CONCLUSION

In conclusion, the institution of marriage, considered as a legal contract, encompasses a complex

interplay of rights, duties, and responsibilities. It embodies a union based on mutual consent and
commitment, conferring legal benefits while imposing obligations on the involved parties.
Understanding the elements of a valid marriage contract, the rights and duties enjoyed and imposed
within it, as well as the potential breaches and remedies, along with the defenses and means of
termination, underscores the significance of this social and legal agreement. Recognizing the nuanced
legal and personal aspects of marriage ensures a comprehensive comprehension of its implications
within societal frameworks.

REFERENCES

Marriage Act,2004

Criminal Code

Child Rights Act,2003

Vanguard: Annulment and divorce

The legal implications of marriage. Oesterreich.

Wikipedia: Marriage contract

Matrimonial Causes Act,2009

The Violence Against Persons (Prohibition) Act of 2015

Administration of Estates Law of Lagos State, 2015,

Law of Contract by Alobo Eni Eja

Sagay, Nigerian Law of contract

Consortium of the marriage contract. Jstore.