By Babayemi Olaniyan Esq,
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Introduction
When a marriage breaks down in Nigeria, there are two primary legal avenues parties can resort to in dissolving the marriage: divorce and annulment. While both result in the termination of a marital relationship, they are distinct in meaning, grounds, procedure, and effect.
- Divorce acknowledges that a marriage existed and is now dissolved.
- Annulment declares that a marriage never legally existed in the first place.
Both processes are governed by the Matrimonial Causes Act (MCA) of 1970, which also regulates issues like custody, maintenance, and separation. This article breaks down the differences between annulment and divorce, the legal grounds for each, and their practical implications for spouses and families.
Annulment of Marriage (Nullity of Marriage) Under Nigerian Law
An annulment is a legal declaration that a marriage was invalid from the very beginning. In law,[1] it is treated as though the marriage never took place. There are two types of annulments under Nigerian law: void marriages and voidable marriages.
- Void Marriages
A void marriage is automatically invalid in the eyes of the law. The couple is regarded as never having been legally married, and no spousal rights or duties arise from it. Under Section 3 of the Matrimonial Causes Act, a statutory marriage is void where:
- Either party was already lawfully married to another person.
- The parties are too closely related to marry. For instance, they are blood relatives (consanguinity) or related through marriage (affinity).
- The marriage was celebrated without complying with prescribed formalities, that is, invalidity by the lex loci celebrationis (law of the place of celebration).
- There was no real consent to the marriage.
- Either party was under the statutory marriageable age.
The court can nullify a void marriage if an application is made. This application may be filled by either of the spouses or by third parties such as siblings or children.[2] It should be noted that a Void marriage is still a marriage. See the case of Daniel Ehohan Oghoyone v. Patience adesua oghoyone (2010) LPELR-4689(CA)
- Voidable Marriages
A voidable marriage is a valid marriage that can be annulled at the instance of one or both parties to the marriage because of some existing defects. Thus, both parties accept the defects, the marriage continues. Section 5 of the MCA provides the grounds upon which a statutory marriage will be voidable, thus:
- Incapacity of either party to consummate the marriage.
- Where either party to the marriage is of unsound mind, mentally defective, subject to recurrent attacks of insanity or epilepsy.
- Where either party to the marriage is suffering from a venereal disease in a communicable form.
- Pregnancy of the wife by a person other than the husband.
Unlike void marriages, which can be challenged by third parties (such as family members), only the spouses themselves can challenge voidable marriages. Importantly, a void marriage is considered never to have existed once annulled. The marriage treats it as if no marriage ever took place. By contrast, a voidable marriage remains valid up until the court declares it annulled.
Another distinction is that an application to annul a void marriage may even be made after the death of the parties, since the law does not recognise the marriage in the first place. In the case of a voidable marriage, however, no such application can be brought after death. The marriage remains valid until that point, and the surviving spouse retains all legal rights that flow from the marriage.
In effect, if a court annuls a void marriage, every year spent together and every act carried out under the guise of that marriage is treated as if it happened outside of the marriage. But with a voidable marriage, annulment only applies from the date of the court’s order. Everything done by the couple before then is regarded as valid and legitimate within the marriage.
Divorce Under Nigerian Law
A Divorce is the legal termination of a marriage that was validly contracted. It recognises that a lawful marriage once existed but has broken down beyond repair. According to Section 15(1) of the MCA, a court may grant a decree of dissolution of marriage if it is convinced that the marriage has broken down irretrievably. To prove this, the petitioner must establish at least one of the statutory grounds set out in Section 15(2) of the Act. These include:
- Non-consummation of the marriage.
- Adultery by one party, making it intolerable for the other to continue the marriage.
- Cruel or intolerable behaviour.
- Desertion by a party for a continuous period of at least one year.
- Living apart for a period of two years with the consent of the other party.
- Living apart for a period of three years.
- Failure to comply with a court order to resume cohabitation.
- Prolonged and unexplained absence of a party, leading to the presumption of death.
A successful divorce ends the marriage and restores the spouses to single status, free to remarry.
Legal Implications of Annulment vs. Divorce
Although both divorce and annulment end the marital relationship, their consequences are not always the same:
- Status of the Parties
- Divorce – Upon the issuance of a Decree Absolute, the parties are restored to the status of single or unmarried personsand may legally remarry.[3]
- Annulment – Treats the marriage as though it never existed.
- Inheritance Rights
- Divorce – Terminates the legal rights and obligations incidental to marriage, including inheritance rights, unless otherwise provided by a will.
- Annulment – No inheritance rights arise since the marriage is deemed void.
- Children and Custodial Matters
- Divorce – The court determines custody arrangements based on the best interest of the child. Divorce does not terminate parental responsibility.[4] The non-custodial parent may retain visitation rights and obligations toward the child’s welfare and upbringing.
- Annulment – Children of an annulled marriage are generally regarded as legitimate, and custody decisions are made similarly with their welfare as priority.
- Property Division
- In both annulment and divorce, the court makes property adjustment orders to ensure fairness. Therefore, the division of assets requires careful consideration.
- Spousal Support (Maintenance/Alimony)
- Either spouse may seek alimony or financial support, particularly where there was economic dependence during the marriage,[5] regardless of whether the marriage ends by annulment or divorce.
Conclusion:
The legal status of the marriage is the main distinction between annulment of marriage and divorce. Divorce ends a valid marriage that has broken down irretrievably, while annulment declares that no valid marriage ever existed due to initial legal defects. In summary, annulment is for invalid marriages while divorce is for valid marriages.
In practice, divorce is far more common in Nigeria, while annulment is limited to specific cases where the marriage was flawed from the outset. Understanding these distinctions is crucial for anyone considering legal options to end a marriage, as the choice between annulment and divorce can have lasting consequences on property, inheritance, and family relations.
Babayemi Olaniyan is the Lead Partner of Lehi Attorneys and a family law expert with years of expertise in resolving family law matters.
Contact Email: yemiolaniyan00@gmail.com, www.lehiattorneys.com
Caveat! The content of this article is for educational purposes and is intended to provide a general understanding of the topic discussed. It is not intended to serve as legal advice whatsoever. If the contents appeal to you and you would want further clarification on any of the points raised therein, do not hesitate to send a mail.
[1] Section 114 of the MCA
[2] Agbaje vs. Agbaje (1985) 3 NWLR (Pt. 11) 11
[3] Williams v. Williams (1967) 1 All MLR 134
[4] Okeowa v. Okeowa (2013) LPELR-20796 (CA)
[5] Oke v. Oke (1974) 1 All NLR 443
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