Divorced but Still Married: The Legal Illusion of Statutory Divorce in Nigeria

In Nigeria’s complex legal system, where customary and statutory laws coexist, the dissolution of marriage is far from straightforward. A recurring issue before the courts is whether the dissolution of a statutory marriage automatically dissolves a prior or co-existing customary marriage between the same parties. A close analysis of judicial decisions and statutory provisions reveals a resounding answer: No, it does not.
Customary and Statutory Marriages: Separate and Co-Existing
It is not unusual in Nigeria for couples to undergo both customary and statutory marriage ceremonies. Customary marriage is conducted according to local traditions, often involving the payment of bride price and family rites. Statutory marriage, governed by the Marriage Act, involves registration and a formal ceremony before a licensed registrar.
The Nigerian Supreme Court, in Jadesimi v. Okotie-Eboh (1996), clarified that these two forms of marriage are distinct and coexisting. According to the court, a statutory marriage does not nullify or extinguish a customary marriage previously conducted. Rather, it supplements it. The parties are bound by the obligations of both legal systems, and each type of marriage requires its own legal procedure for dissolution.
What the Law Says
The legal position is supported by clear statutory provisions:
Section 35 of the Marriage Act expressly provides that nothing in the Act shall affect the validity of marriages conducted under customary law. Therefore, the dissolution of a statutory marriage cannot affect a valid customary marriage.
The Matrimonial Causes Act, which governs statutory marriage, contains no provision that permits or even implies that a customary marriage can be dissolved by merely obtaining a court decree dissolving the statutory union.
The Court of Appeal in Nola & Ors v. Graham-Douglas & Anor (2019) reinforced this view, affirming that a customary marriage remains valid and distinct from any statutory marriage that may follow it.
The Role of Bride Price in Customary Divorce
Dissolving a customary marriage is not as simple as claiming that one no longer wishes to be married. There is a well-established customary procedure, which generally includes the return of the bride price. This act signals to the families and the community that the marriage has been formally dissolved under native law and custom. Without this step, the marriage is presumed to be subsisting.
In Ezeaku v. Okonkwo (2011), the Court of Appeal emphasized that a valid customary marriage cannot be dissolved by mere assertions or assumptions. Proper procedures, such as the return of dowry, must be followed and proven in court.
No Automatic Dissolution by Statutory Divorce
The argument that the statutory divorce of a couple also dissolves their customary marriage finds no support in Nigerian law. In fact, accepting such a position would amount to reading into the law what the legislature has not provided — a violation of the principle of statutory interpretation.
The Supreme Court’s reasoning in Jadesimi and reaffirmed by later cases makes it clear that while a subsequent statutory marriage might make a relationship monogamous, it does not render the earlier customary marriage invalid. The two marriages exist side by side, each with its own set of obligations, rights, and dissolution processes.
Questionable Authorities and Judicial Precedence
It is important to rely on credible and binding precedents. Some authorities, such as the unreported Teriba v. Teriba and Rickett, allegedly decided in 1967 by an “Ibadan High Court,” lack verifiable details and are of doubtful origin. Even if such a decision existed, it would not bind other courts of coordinate jurisdiction, especially where superior court decisions — such as those of the Supreme Court — clearly establish a contrary position.
Conclusion: Two Marriages, Two Endings
The Nigerian legal system recognizes both statutory and customary marriages as valid, but it does not permit the dissolution of one to automatically end the other. Anyone seeking to completely dissolve all forms of marital ties must follow the distinct procedures applicable to each marriage type.
For legal practitioners, claimants, and defendants alike, this legal truth is critical. The failure to properly dissolve a customary marriage could have serious implications — particularly in inheritance and succession matters.
As the courts have made clear: You can be divorced in law (statutory), but still married in custom.