Bigamy, which is marrying one person while still legally to another, has been a subject matter that has been discussed amongst academicians and the general public in contemporary Nigeria. In this article, we’d be discussing the position of the legality of bigamy in Nigeria. We are going to be considering bigamy under the Marriage Act and the native and customary laws of Nigeria. Read on to find out if bigamy is legal in Nigeria.
Is Bigamy Legal in Nigeria?
Bigamy is a crime under the adopted English common law of Nigeria and is therefore not legal. The Nigerian Marriage Act, which is the civil law governing marriage in Nigeria prescribes a penalty of up to 5 years in prison, while the Criminal Code which is enforced in Southern Nigeria ascribes a maximum prison sentence of 7 years for bigamy. But under the native and customary laws (including the Sharia Law) of Nigeria, marriage to another person while a previous marriage still subsists does not count as bigamy and is therefore not a punishable offence.
What Constitutes Bigamy in Nigeria under Nigerian Statutory Law?
Based on the statutory law of Nigeria, the only recognized form of marriage is monogamy. That is, the union of one man and one woman, voluntarily entered for life, to the exclusion of all others is what the Nigerian Marriage Act recognize as being the legal form of marriage. The contravention of this voluntary union between one man and one woman, by marrying another marital partner outside the person previously married under the Marriage Act, is bigamy.
Simply put, bigamy is when another marriage is contracted under the Nigerian Marriage Act, while a previous marriage under the Act still subsists. Since bigamy goes against monogamy as provided by the Act, it is an offence with a penalty ascribed to it. According to Section 46 of the Marriage Act, a person guilty of bigamy is liable to imprisonment for 5 years. While a penalty of 7 years imprisonment is what Section 370 of the Criminal Code Act prescribes for bigamy in Nigeria.
We should point out that it is still bigamy if another marrying is contracted with a new marital partner because there is no longer love in the previous marriage under the Marriage Act. If one marries another person for his or her sanity without properly ending the initial marriage made under the Act, bigamy has been committed.
However, bigamy is not said to be committed when a married person whose marriage was made under the marriage act, commits adultery. Adultery, though punishable per the provisions of the Marriage Act does not equate to bigamy. Furthermore, when a married person under statutory law cohabits with someone else other than his or her spouse without performing a wedding ceremony, bigamy hasn’t been committed.
When a marriage made under the Act has been dissolved by a court of competent jurisdiction, or a spouse has died, any marriage that is contracted under the Marriage Act stands as a legal union recognized by the statutory law. However, if there’s a separation for five years without a formal divorce settlement and one of the parties previously married under the Act goes ahead to contract another statutory marriage, the offence of bigamy has been committed.
If a new marriage is contracted under the Marriage Act if there a spouse has been missing for 7 years prior, and in that time no communication has been made between the spouses, bigamy has not been committed.
What is the Position of Customary Law on Bigamy in Nigeria?
Nigeria operates a two-tiered legal system, vis-a-vis the statutory and customary law. As such, this duality creates a difference in the application of the law. If an initial marriage were to be made under the customary law (including th Islamic legal system), the laws that apply to that form of marriage would be the customary law.
Getting married twice or more under the native and customary laws of the country are permitted as polygamy is allowed. And bigamy is a subset of polygamy, hence it’s equally permitted under the native and customary laws of Nigeria. But in the customary marriage system, the new partner would need to be informed of the already existing spouse before the marriage ceremony to prevent the marriage from happening as a result of deception. According to the Penal Code which is practised in Northern Nigeria, failure to inform a new partner of an already existing marriage is tantamount to deception which is a punishable offence. Below is what the Section 285 Penal Code Act says on the matter of re-marriage with concealing of previous marriage:
“Whoever violates section 384 of this Penal Code by hiding the fact of a previous marriage from the person with whom the subsequent marriage is contracted shall be punished by imprisonment for up to 10 years and a fine.”
Do Bigamy Defaulters Receive the Maximum Punishment in Nigeria?
No, they don’t. In Nigeria, there haven’t been very many cases of bigamy. Although there are penalties attributed to this offence, defaulters hardly get the full sentence for some reasons peculiar to the Nigerian society. The Marriage Act ascribes 5 years imprisonment as the punishment for bigamy. The Criminal Code prescribes 7 years as punishment for bigamy. The Penal Code prescribes a sentence of up to 10 years imprisonment for re-marriage with the concealing of a previous marriage.
The major reason why lesser punishment has been meted out against bigamy in Nigeria is that Nigeria is naturally a polygamous society. Nigeria ranks the fifth country with the most polygamous marriages on earth, per Wikipedia. Another reason why lesser punishments are meted out is that most cases of bigamy are void of deception since the new partner is usually informed of the existence of another marital partner. Hence, mitigating the severity of the punishment as intent to deceive is absent. Lastly, lots of people are unaware of the rule of bigamy, in the sense that they contract a new marriage without legally dissolving the previous one, even if the marriage has been constructively terminated.