Ayomikun Kuewumi (Adekunle Ajasin University) has posted Between Contract and Status: A Critical Examination of Statutory, Customary and Islamic Marriages in Nigeria on SSRN. Here is the abstract:
The question of whether marriage constitutes a contract, a status, or a unique legal hybrid stands as one of the most enduring and consequential debates in comparative family jurisprudence. In Nigeria, this question is complicated by the co-existence of three distinct marriage systems. Statutory marriage governed by the Marriage Act, customary law marriage regulated by the indigenous customs of Nigeria’s diverse ethnic communities, and Islamic marriage (Nikah) administered under Islamic personal law and enforceable in the Sharia courts of the northern states. Each system rests on a unique normative foundation, deploys its own formation requirements, and draws on a distinct cultural philosophy of what marriage is and what it is meant to achieve. Yet across all three systems, the elements most familiar to the law of contract (offer, acceptance, consideration, capacity, and consent), are unmistakably present, raising the question whether their presence suffices to classify marriage as a species of contract or whether marriage transcends contractual analysis altogether. This essay critically examines the contractual and status dimensions of marriage across all three systems in Nigeria, with particular emphasis on the requirements of formation and validity which are the mechanics of offer and acceptance, the centrality of free and real consent, the rules of capacity including age and mental soundness, and the consequences of non-compliance. The essay maps the statutory landscape, traversing the relevant provisions of the Marriage Act, the Matrimonial Causes Act, and the Child’s Rights Act, while engaging with the authoritative judicial decisions that have shaped the law in this area. Foundational cases such as Hyde v Hyde, Osamwonyi v Osamwonyi, Obi v Bosah, Okpanum v Okpanum, and Ayoade v Ayoade are examined alongside the seminal theoretical framework proposed by Sir Henry Maine to interrogate the movement from status to contract. The essay also addresses related and practically significant issues, including the legal status of church weddings in Nigeria, the criminal implications of bigamy for persons married under the Marriage Act, and the legal irrelevance of cohabitation under Nigerian law. The essay concludes that while Nigerian marriage law borrows extensively from contract doctrine in its formation rules, marriage in all three systems ultimately constitutes a status, a condition in which the state, the community, or the religious institution retains a normative stake that individual parties cannot unilaterally alter or dissolve. The contractual elements visible at the threshold of marriage are a gateway, not its governing logic. Understanding this distinction is essential not merely as an academic exercise but as a matter of practical legal consequence, affecting the rights of spouses, children, and families across Nigeria’s pluralistic legal order.
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