LOVE, AT YOUR OWN RISK? – GENERAL LEGAL IMPLICATIONS OF LOVE, MARRIAGE AND SEX UNDER NIGERIAN LAW

‘I love you’. These three words are perhaps the most life-changing phrase a person can utter to another person. At some point or the other practically all adults (and teenagers, too) have believed themselves to be in love, or believed some person to be in love with them and so have either uttered those words or had those words spoken to them.

Whether one is truly ‘in love’ with the person to whom the words ‘I love you’ are uttered or not, the truth is that loving or being loved carries with it great obligations, expectations and liabilities. That is to say love is risky business. In other words, love IS AT YOUR OWN RISK!

When you park your vehicle in a public parking spot, for example, you may find a warning in bold letters – VEHICLES PARKED AT OWNERS’ RISK. The same applies to love. Parking your love in some else’s life is indeed at your own risk.

Love is the first step in a series of life-changing decisions which impact on the social, moral and legal relationships between persons all over the world. After love comes marriage, and then sex (although we find more of love, sex and then marriage in our society these days).

Since marriage and sex are mutually inclusive (cannot be divorced from each other) It is the aim of this piece to examine the legal implications of love, marriage and sex, so that the next time we say ‘I love you’, with the ultimate goal of marriage and/or sex, we will have an idea of what exactly we are getting ourselves into.

Now then, we shall consider the legal implications/requirements of marriage, and then look at the legal implications/requirements of love and sex.

LEGAL IMPLICATIONS OF MARRIAGE

There are a number of requirements, obligations and effects of marriage. We shall for the purpose of our discussion, we shall divide them into pre-marital obligations, and post marital obligations. Pre-marital obligations shall focus on what is legally required of a person seeking marriage, Marital obligations shall be focused on what rights and liabilities attach to persons who are married.

Since there are basically two types of marriages recognised by law in Nigeria, the nature of rights and liabilities (legal implications) depend on the type of marriage one has contracted. For the purpose of saving time and space, we shall discuss the implications of the various types of marriages recognised in Nigeria.

But first, let us understand the types of marriages that are recognised in Nigeria.

As we noted earlier, there are two types of marriages recognised under Nigerian law and they are classified as Christian Marriage (Marriage under the Act), which many people erroneously refer to as ‘Court Marriage’ (there is nothing like court marriage under the law) and then there is the Customary Law Marriage (Which is either a marriage contracted under any customary law of the parties or A marriage contracted under Islamic Law.)

While it is true that many of us have been told in our social studies that there are three ways of marrying or three kinds of marriage – Church Marriage, Islamic Law Marriage and Traditional Marriage. Social studies is however not law so be informed, henceforth, that there are only two types of marriages recognised in Nigeria – Christian Marriage and Customary Law Marriage. Islamic Law marriage is deemed /classified the same as customary law marriage.

PRE-MARITAL IMPLICATIONS

The major premarital obligations are as follows:

i.             Marriage Age: Both Islamic Law and customary law do not really fix any base-line on the age a person must be before the person can marry, that is why the system of betrothal exists under both customary law marriage and Islamic law marriage. A person can be betrothed (promised to another person in marriage) as soon as the person is born. However the a girl is generally deemed to be of marriageable age under customary law when she is up to twelve years old or when she begins to experience menarche (menstruation). The problem with this is that more and more girls have been found to begin menarche at an age lower than twelve and many start from as early as nine years old. Should these girls be deemed marriageable? Many states now have established laws that prohibit child marriages and make it an offence for someone to marry or give in marriage a child less than 16 years of age.

Under the Christian Marriage, however, A person is of marriageable age as from eighteen (18). But an 18-year-old who seeks to marry must get his/her parent’s consent (approval) to get married. There is no need for a person to ask his/her parent’s permission to marry if the person is above 21 years old.

ii.           Consent of Parties: Since marriage is actually a contract between two persons, there must be an agreement between the parties that they want to marry. This agreement must not be induced, procured or forced. That is to say that the man, for example should not kidnap a girl and then insist she marries him or he will kill her. Also, an induced marriage where a person tricks another to marry him or her simply because they want to get an American green card or because the person’s parents are indebted to him is not a marriage where consent was voluntarily given. Of course, this mainly applies to Christian Marriage or Marriage under the Act. In customary/Islamic marriages, the consent of the persons (especially the females) is not always sought. A person subject to native law and custom may simply be married off to any person the parents wish.

iii.          Sound Mind: Only a person of sound mind can marry. Persons who are mentally challenged cannot marry.

iv.          Status: Under Christian Marriage, only a person who is single (whether bachelor/spinster or divorcee) can marry. A person who is already married to another person cannot contract a Christian marriage. If he or she does, it will amount to an offence called BIGAMY, and it is punishable with 7 years imprisonment. However, under the customary/Islamic marriage, a person who is already married can marry other additional wives while still being married.

v.           Place of Marriage/Person celebrating a marriage: Place of Marriage means the venue where a person marries while person celebrating a marriage means the person conducting the marriage ceremony.

A Christian marriage can only be celebrated in a Marriage Registry or a licensed place of worship. Also it must be celebrated by a licensed minister of religion or a Marriage Registrar.

This is important, especially for Pentecostals. Anglican, Methodists, Catholics and other Christian Churches are all licensed priests, but in the Pentecostal settings, anybody can just wake up, claim he has been ‘called’ and open a church. Such churches are not licensed places of worship, and their pastors are not regarded as licensed ministers. Anybody who gets married by one of such pastors or in one of such places is actually just joking. Such a person is not married under Christian Marriage.

To be properly married, a couple must either get married at any of the many Marriage Registries around or by one of the Priests in any of the Orthodox churches we mentioned earlier.

Note, however, that a Pentecostal who is not a member of the orthodox churches can easily go to the marriage registry and get married properly, and then come back to his church and marry in any way his church usually does it.

Persons bound by customary/Islamic law are not bound by these rules. A customary marriage can take place in the sitting room of the person seeking to marry, and be conducted by the parents of the bride and groom or their elders, and still be valid, while an Islamic Marriage may take place in a football field and still be valid if conducted by any cleric of the couple’s choice.

POST-MARITAL IMPLICATIONS

Having looked at a few pre-marital implications of marriage, let us look at some important post-marital implications.

ONENESS

It is not only the Bible that declares a man and his wife one when they marry. If a person marries under Christian Marriage, he and his wife are deemed one under our law. That is to say (subject to certain exceptions) what belongs to the husband belongs to the wife, and vice-versa.

Also, under this oneness concept, if the man is arrested for an offence, his wife cannot be forced to testify against him even if she knows he committed an offence.

This does not apply under Islamic law marriage or customary law marriage.

SEX

Sex is integral part of marriage, and the refusal or inability to have sex can be a ground for annulling or dissolving the marriage under any of the types of marriage. This is so important that if a man or woman refuses to have sex with their spouse, the affected spouse can go to court to force the refusing spouse to ‘do the dew’. This is called restitution of conjugal rights in Law.

TWO – YEAR RULE

In order to stabilize a Christian marriage there is what is known as the two- year rule. That is to say when you marry, you must remain in that marriage for at least two years before you can divorce, except under very exceptional (serious) circumstances. This is not so under Islamic/Customary marriage where the divorce can happen at any time.

PROPERTY/SUCCESSION RIGHTS

Another very important implication of marriage is that marriage affects succession (inheritance) rights, depending on the type of marriage.

Under Christian Marriage, for example, when a spouse dies without a will, it is the surviving spouse that automatically becomes the next of kin and has the right to apply to court for the issuance of letters of administration.

Under customary marriage, the rules are less clear. In fact, in many cultures, when a man dies, his brothers and other relatives move in and take away everything they can lay their hands upon from the widow.

LEGAL IMPLICATIONS OF LOVE AND SEX

From now on, whenever you say ‘I love you’, beware! You may be parking your love where it could get towed away! Or cost you dearly.

No corresponding obligation to love back or return gifts given in the name of love

Many people have this belief that the person they love must love them back. No. there is no obligation on a person you love to love you too. In order words, you cannot sue someone or get someone arrested because you love him and he is not ‘cooperating’ by loving you back.

Also, when people believe they are in love, they mostly go on a gift-giving spree – buying flowers, perfumes, clothes, cars, even houses for the person they claim they love.

When the love turns sour for some reason or the other, they demand their property back. Too late! Properties given in the name of love have gone and cannot be retrieved. If you wish NOT to make the gift permanent, then you must state so. If, for example, you make a gift of a house to a person and you buy it in that person’s name, it become that person’s property for life.

You can only love the opposite sex

Homosexuality is an offence in Nigeria. In fact the law is that it is not only engaging in homosexual sex that is an offence, any overt (open) act suggestive of homosexuality is an offence, for instance romantically holding the hands of a person of the same sex, or kissing such a person can earn a jail term as long as fourteen years.

Only a single person

You also cannot love a person who is married. There are laws of enticement and harbouring which may create liability for you if you go on a love expedition after another man’s wife. Of course, it is also a very risky venture, because one can never know how a person whose husband/wife is being ‘loved’ by another person will react to such a lover. We have heard cases of use of acid, hot water, and boiling oil used against such lovers.

Only a person of legal age

One can only love a person of legal age. In fact, getting romantically involved with minors is a serious offence. For example, having sex with a woman below sixteen years of age is considered rape (statutory rape) whether the lady agreed to have sex with you or not.

The law protecting persons below the age of 16 from illicit sexual encounters is so serious that it does not matter if the girl looks like a 30 year-old lady. It also does not matter if the girl deceived you and told you she was older than 16! You can see that truly, love is at your own risk!

Only a person of sound mind

You cannot fall in love with persons who have mental disability. Imbeciles, idiots and other persons who are mentally challenged cannot enter into any valid sort of agreement and so even if such a person is more than eighteen years old, any sexual encounter with them in the name of love is defilement and carries strict penalties of long jail terms.

No harassment in the name of love

As we have said before, some people feel that since they love somebody, that person should also love them back. When such love is not being returned, they resort to a number of gimmicks to catch the attention of the other parties. For example, they follow the girl or boy all over the place, they call the person’s telephone lines incessantly, they send all manner of unwanted gifts and generally make the person’s life miserable in a bid to get that person to notice them and love them too.

This is harassment, and the boy or girl being harassed can go to court to complain of harassment, and get an injunction or restraining order against you. The Order might direct you to stop coming around the person and if you fail to obey the order, that would amount to contempt of court and you could spend some time in jail. The sexual and domestic violence law of Lagos State makes ample provision for getting restraining orders, etc from stalkers or persons harassing you.

You can be sued for breach of promise to marry

There are people that know a man or woman loves them and they will play along promising to marry the woman or woman only to dump her after many years of courtship and promise to marry.

Well, there is a legal implication for this and such a playboy/playgirl could be sued for breach of promise to marry. Beware!

Jactitation

Some men or women go about with a woman or man and keep introducing such person to everyone as ‘my wife’ or ‘my husband’. Doing this is very risky, especially if you don’t eventually marry the person, because such a person can sue you for what is called jactitation. In other words, the person can take you to court and ask the court to declare both of you husband and wife. If this happens, congrats! You are now a married man, whether you like it or not!

If you get the girl pregnant you must provide

Sex comes with responsibility. Many people who have no source of income have sex and get some unfortunate girl pregnant and then they flee. That era is now past, especially if you live in Lagos. It is now an offence to abandon a woman you have impregnated. In fact, if someone else takes charge of the expenses, it will all be calculated and you will be made to refund it all!

As we have seen above, love, sex and marriage have far reaching consequences.

The three concepts are interrelated and what usually sparks them off is that simple three letter phrase ‘I love you’.

It is my hope that after reading this, you are now aware that LOVE IS AT YOUR OWN RISK and that you will ‘park’ carefully hence forth.

BJ Awe (Esq)

Partner, Litigation Associates & consults

Suite 191, Block A2-16, Sura Shopping Complex, Off Simpson Street, Lagos

08067810827, [email protected]

[email protected]