Validity Of Virtual Marriages Under Nigerian Law- Another View By Francis Igho Erhiakporeh

Introduction

One of the many consequences of the COVID-19 pandemic and the lockdown measures that attended it is the indefinite postponement of previously scheduled wedding plans.  However, there are optimists amongst those whose marital plans were affected who chose to make lemonade from the lemons of the pandemic.

To get around the challenges posed by the lockdown, some intending couples took advantage of the alternative provided by virtual platforms to contract their marriages. This alternative came with an added cost-cutting bonus as they were able to avoid the associated expenses that would have attended the traditional forms of contracting marriages.

In the wake of this development,  views have been expressed  on the propriety or otherwise of celebrating a marriage via online platforms. In one of such views, Dennis Real Daniel, Esq.[1] opined that such virtual marriages may be invalid under Nigerian law in the absence of a license issued by the Minister in accordance with the provisions of the Marriage Act, authorizing the solemnization of such marriages on virtual platforms.

He  also posited that such marriages may, however, remain valid in the absence of a license issued by the Minster in the manner aforementioned, if, and only if, the parties can establish that they were ignorant that such online celebration is not recognized by law.[2]  He concluded that pending an amendment to the Act with a view to giving legality to marriages solemnized via online platforms in Nigeria, the Minister may issue licenses for the solemnization of marriages on  virtual  platforms.

In response to this view,  this article aims at providing a different perspective on the subject of discourse  vis a vis the provision of the Marriage Act. The article will outline the condition for a valid solemnization of marriage properly so called under the Act, and will posit that whilst virtual/online solemnization of marriages may be alien to Nigerian law, and may not (save for  an outright amendment to the Act) have any semblance of legality by any means under our current legal framework, the validity or otherwise of such marriages will depend on the circumstance of their  solemnization. The article will conclude with an advice to intending couples to consider deferring their marriages until after  the restrictions on public gatherings are lifted, where it is impracticable to have the marriage celebrated within the confines spelt out in  the Marriage Act.

Solemnization/Celebration of Marriage under the Marriage Act

Without prejudice to the provision of the Act with respect to  preliminaries steps before the celebration of a marriage[3],  the solemnization of marriage under Nigeria law is directly governed by Sections 21-29 of the Act. These Sections center on the place/venue and manner of the solemnization of marriages under the Act, which is the subject of discourse in this article. The combined implication of Sections 21-29 of the Act is that marriages can only be celebrated:

• In a licensed place of worship by a recognized minister of a Church, denomination or body to which such licensed place of worship belongs; provided the marriage is celebrated with open doors between the hours of eight o’clock in the forenoon and Six o’clock in the afternoon, in the presence of two or more witnesses besides the officiating minister. [4]
• Before the Registrar of marriage, in the presence of two witnesses in his office, with open doors, between the hours of ten o’clock in the forenoon and four o’clock in the afternoon.[5]
• In any other place as may be licensed by the Minister (other than a licensed place of worship or a registrar’s office), by a minister or registrar.[6]

Section 23 of the Act prohibits a minister from celebrating any marriage except in a building which has been duly licensed by the Minister, or in such place as the license issued under Section 13[7] of the Act, may direct. It is also the requirement of the Act that immediately after the celebration of any marriage by a minister/registrar, a certificate shall then be signed in duplicate by the officiating minister/registrar, by the parties, and by two or more witnesses to the marriage.[8]

From the foregoing provisions of the Act, it is apt to say the following are the indicators of a marriage validly celebrated under the Act:

• It must be celebrated by a recognized minister or registrar;
• It must be celebrated in a licensed place of worship, or in the registrar’s office, or in a place[9] authorized by the Minister under a license (other than a licensed place of worship or the registrar’s office);
• The doors of the venue must be opened and the celebration must be done during day time;
• The minister/registrar, parties and witnesses must all be physically present at the place where the marriage is to be celebrated;
• The signing of the marriage certificate by the minister/registrar, the parties and witnesses must be done immediately after the celebration of the marriage;
• In the case of a marriage celebrated by a minster, the duplicate copy of the marriage certificate must be delivered to the registrar within Seven days after the celebration of the marriage.

Extrapolating from the foregoing, any marriage so celebrated in the absence of any of the stipulations of the Act  listed above, except where excused by the Act, is  void or voidable.

Moreso, from the provisions of the Act, it is without doubt that one of the fundamental determinants of a valid marriage is the place of celebration. As a matter of law, the place of celebration is so fundamental that failure to adhere to the provisions of the law in that regard renders the marriage void ab initio, except the parties can, as a matter of fact, establish that they were not aware that the place was not so licensed for the celebration of  marriage.

Section 33 of the Act provides thus:

33 (2)- “A marriage shall be null and void if both parties knowingly and willfully acquiesce in its celebration-

(a) in any place other than the office of a registrar of marriage or a licensed place of worship (except where authorized by the license issued under section 13 of this Act);

Section 33 (3)- But no marriage shall, after celebration, be deemed invalid by reason that any provision of this Act other than the foregoing has not been complied with”.

It should be noted that in the provisions of the Act dealing with solemnization of marriage[10], the requirement that the solemnization be done in a licensed place/building/offices also contemplates the physical presence of the minister/registrar, the parties and witnesses at the licensed place of the celebration. A place[11] is a building or area that is used for a particular purpose; or a building, part of a building, or area that is used for shelter. It is therefore submitted that “place” as used under the Act, contemplates a building or a structure with doors for easy ingress and egress.

In effect, the Minister in exercise of his power under the Act, can only issue a license for the celebration of a marriage in a place where people can physically converge with doors for ingress and egress. Thus, the Minister may, in the exercise of his power to issue license for the celebration of a marriages other than in a licensed place of worship or registrar’s office, issue a license for a marriage to be celebrated in the intending couples living room or the pastor’s living room, provided the parties and the witnesses are physically present there, and in such instance, the power would have been validly exercised. However, the Minster cannot, in exercising his power, issue a license for the celebration of marriage in cyberspace, even where same is practicable. If he so does, such exercise of power will be illegal, because  cyberspace is not a “place” as contemplated by the Act.

Are Virtual Marriages valid under the Act?

The question of validity or otherwise of virtual celebration of marriages may depend[12] on the physical location of the minister/registrar, the parties and the witnesses[13]at the time of such celebration. Most church services are now conducted online with the pastors/ministers and few members of the choristers/instrumentalist physically present in the church building while other members of the congregation participate in the service by watching on television or on various online platforms.[14]

The question then is; in light of the provisions of the Act, do  marriages contracted via online platforms such as Zoom, Instalive, Webex meeting, etc meet the requirement of the Act with respect to “place of celebration” for same to be valid? It is submitted that the answer to the above question depends on the physical location of the necessary parties at the time of the solemnization.

The referenced online platforms are merely virtual mediums of communication and do not literarily house people. Instead,  people are required to be physically present at a particular location/place. With this in mind and taking into consideration the requirement of the Act with respect to the physical presence of the necessary parties at the licensed place for the celebration, the validity or otherwise of such marriages will depend on the ability of the necessary parties to the marriage to converge at the licensed place for the celebration.

As it is the case with church services conducted online, a marriage may also be celebrated online with the necessary parties physically present at the licensed place of worship, while family, friends and well-wishers may join in the celebration from the comfort of their homes or wherever they are, other than the place of celebration. Where this is the case, the celebration of the marriage will be valid as same would have complied with the requirement of the law with respect to the physical presence of the necessary parties at a licensed place.

However, a virtual marriage will be invalid if celebrated under any of the following circumstances:

• Where the minister/registrar is physically present in a licensed place while the parties and witnesses are in another location (it does not matter if the other location is also a licensed place), the marriage will be void.
• Where the minister/registrar and the parties are in a licensed place whereas the witnesses are in another location, the marriage will be
• Where the parties and witnesses are in a licensed place while the minister/registrar is in another location, the marriage will be void
• Where the necessary parties are not in a licensed place but merely connect via online platform from different locations, the marriage will be

The marriages celebrated under the foregoing circumstances will be void for failing to meet the requirement as to the physical presence of the necessary parties at the licensed place during the celebration. It should be noted that the requirement that the necessary parties sign the marriage certificate immediately after the celebration of the marriage, is also impracticable under any of the circumstances listed above.[15]

The provision of Section 33(2)(a) which operates to save an otherwise void marriage on account of ignorance of the fact that the place where the marriage was celebrated was not licensed, may not avail parties who sit in their house while the minister joins them via Zoom or Instalive.  It is a question of fact, and each case will be treated on the basis of its  peculiar  circumstance. In all the cases where the courts declined to void  marriages premised on the provision of Section 33 (2) (a) of the Act, such marriages were solemnized in an unlicensed place with the necessary parties physically present during celebration,[16] they were not celebrated via online platforms.

Conclusion

There are calls for  amendment of the Marriage Act to accommodate the celebration of marriages without strict compliance with the requirement as to the physical presence of the necessary parties at the licensed place of celebration. However, virtual marriages, though alien to Nigerian law, could  be validly contracted within the confines of the law.

It is understandable that most Nigerians will  prefer contracting  their marriages with crowds in attendance. However, the need to consider virtual celebration of marriage may be informed by diverse reasons other the conditions imposed by the outbreak of COVID-19, and same may still be a viable option post COVID-19.

Until an amendment is made to the Act, intending couples desirous of celebrating their marriages despite the current realities, may explore the only valid virtual celebration option which involves the presence of the necessary parties at the licensed place while other persons may join in via any of the online platforms. Where this is impracticable, it is advised that intending couples wait until after the restrictions on public gatherings are lifted before contracting  their marriages. To do otherwise will render void such marriages contracted  via any of the online platforms in violation of the provisions of the Act.

Francis Igho Erhiakporeh, a Legal Practitioner based in Port Harcourt, Nigeria.

[1] In his article titled “Validity of Virtual Marriages under the Nigerian Law” published on the NigeriaLawyer.com on April 29, 2020.

[2] Yes, Section 33(2) of the Marriage Act is an exception to the general rule that ignorance of the law is not an excuse.

[3] Section 7-14 of the Act

[4] Section 21 of the Act

[5] Section 27 of the Act

[6] Section 29 of the Act.

[7] This section deals with the issuance of license by the Minister authorizing the celebration of marriage by a minister or registrar in a place other than the a licensed place of worship or the registrar’s office.

[8] See section 25 & 28 of the Act

[9] Hereinafter generally referred to as licensed place.

[10] Including marriage involving Nigerians in foreign land under Sections 49 & 50 of the Act

[11] According to the Meriam-Webster Dictionary

[12] without prejudice to other formalities stated under the Act

[13] hereinafter jointly referred to as the necessary parties.

[14] There are also virtual lectures and virtual court sittings.

[15] There is no provision either on e-marriage certificate or on e-signature by celebrants.

[16] Obiekwe v Obiekwe (1963) ENLR 196