In Nigeria’s plural legal system, a marriage is meant to be dissolved in accordance with the law under which it was celebrated.
If you marry under Customary (traditional) law, it can be dissolved under Customary law.
If you marry under Islamic law (Maliki Shia/Sunni rites), it is dissolved through Islamic law (via a Sharia Court or an Area Court applying Islamic law).
If you marry under the Marriage Act (a “court/statutory/Registry wedding”), it can only be dissolved by a State High Court.
However, the reason the Upper Area Court judges in Ilorin ruled the way they did comes down to two critical legal principles: Plural Marriages (Double Marriage, conducted under both statutory and traditional rites) and Judicial Enforcement.
Below is an analysis of the legal and constitutional basis of this reasoning.
Customary vs. Statutory Divorce:
Analyzing the Upper Area Court Ruling in Uzochukwu v. Uzochukwu
The intersection of customary tradition and statutory law frequently creates friction in Nigerian family law. The recent ruling by the Upper Area Court in Ilorin, Kwara State, involving Mr. Mmala Uzochukwu and his wife, Mary, highlights a fundamental legal reality: while cultural practices hold immense social weight, they cannot bypass judicial oversight when a citizen seeks the enforceable intervention of a court of law.
When the presiding judges, Mr. Sunday Adeniyi and Hammad Ajumonbi, held that “the court does not recognize divorces conducted traditionally,” they were reinforcing established constitutional and statutory rules regarding the legal status of marriage dissolution and property claims.
1. The Principle of Parallel Dissolution (The “Method” Rule)
In Nigeria, the law recognizes three distinct systems of marriage:
1. Statutory Marriage (Celebrated under the Marriage Act; often called a “court” or “church” wedding).
2. Customary Marriage (Celebrated according to the native law and customs of the parties’ ethnic groups).
3. Islamic Marriage (Celebrated according to Islamic law/Sharia).
Legally, a marriage must be dissolved using the same legal machinery under which it was created.
A Statutory marriage can only be dissolved by a State High Court under the Matrimonial Causes Act (MCA) 1970.
A Customary marriage can be dissolved non-judicially (by elders or a traditional ruler via the refund of bride price) or judicially (by a Customary Court or an Area Court).
Why did the Judge reject the traditional ruler’s divorce?
There are two likely legal reasons why the Upper Area Court refused to recognize the village ruler’s dissolution:
Reason A: The Existence of a Statutory (“Court”) Marriage
If Mr. Mmala and Mary, after their traditional wedding, went ahead to have a registrar’s wedding (a court wedding), the traditional marriage was legally swallowed or superseded by the statutory marriage. Once a statutory marriage exists, no traditional ruler, village council, or family head has the legal authority to dissolve it. It can only be dissolved by a High Court judge.
Reason B: The Absence of a Judicial Decree for Property Claims
Even if the marriage was strictly customary, Mr. Mmala approached an Upper Area Court, a formal judicial body to make claims over real property (houses/land). A traditional ruler can witness the return of a bride price, but a traditional ruler cannot issue an enforceable court decree dividing real estate or ordering asset distribution. To get a court order for property, you must have a court decree of divorce.
2. Constitutional and Statutory Basis for the Ruling
A. The Plurality of the Legal System
The Nigerian Constitution recognizes a plural legal system. Under Section 275 of the 1999 Constitution, states can establish Sharia Courts of Appeal, and under Section 280, Customary Courts of Appeal. Area Courts and Customary Courts have jurisdiction over customary matters.
However, when a party asks a court to step in and divide property, the court requires a strict, formal verification that the marriage is dead. The court cannot rely on the extra-judicial word of a village head when issuing binding legal orders regarding land ownership or child maintenance.
B. The Matrimonial Causes Act vs. Native Law and Custom
If the couple had a court wedding, Section 1 and 2 of the Matrimonial Causes Act strictly states that matrimonial reliefs (including property settlement and child maintenance) for statutory marriages can only be instituted in the High Court of a State.
If an Area Court or Customary Court is handling a purely customary divorce, the court itself must look at the evidence. The judges noted: “The only divorce that can be recognized is the one done in a court; you have to file for divorce before anything can be claimed.”
By this, the judges meant that for the court to exercise its power to grant property rights or child upkeep, the judicial process of divorce must take place within the courtroom setup, allowing the judges to evaluate both parties’ contributions equitably.
3. The Danger of “Extra-Judicial” Customary Separations
Mr. Mmala testified that his bride price was returned, believing he was a free man. While native law and custom agree that returning the bride price signals the end of a traditional marriage, the Supreme Court of Nigeria has repeatedly cautioned against unrecorded, extra-judicial divorces when legal rights are at stake.
Without a certificate of dissolution from a competent court (like a Customary or Area Court):
Bigamy Risks: If either party attempts to marry someone else under the Marriage Act, they commit the offense of bigamy.
Property Deadlocks: As seen in this case, neither party can legally claim or partition matrimonial property because, in the eyes of the state, no lawful authority has formally wound down the partnership.
Conclusion: Was the Judge Right?
Yes, the judge was correct.
The judge did not say traditional marriage is invalid; rather, the judge ruled that traditional divorce is unrecognized by a court of law as a valid foundation for making judicial property claims.
If you want the law of the state to help you divide assets, enforce child maintenance, or secure a property title, you must bring your marriage to the law of the state to be dissolved. A traditional ruler can settle a family dispute, but they do not possess the judicial power of the Federal Republic of Nigeria to strip or grant legal property rights. Mr. Mmala must formally file for divorce in court before he can ask that same court to award him his property claims.
Centre for Nigeria Progress 