Navigating the process of divorce can be difficult, especially when it comes to the legal documentation required. One common question that arises is: Can you file for divorce without a marriage certificate in Nigeria? This article explores the intricacies of this issue, focusing on statutory marriages, and provides an overview to help you understand your options.
Types of Marriage in Nigeria
In Nigeria, there are two main types of marriages:
1. Customary Marriage/Islamic Marriage: Customary marriage are marriages contracted in accordance with native laws and customs, while Islamic marriages contracted in line with the Islamic laws. Issuance of marriage certificates is strange to these types of marriages.
3. Statutory Marriage: It is also referred to as marriage under the Act or “court marriage.” It is a marriage contracted in line with the provisions of the Marriage Act. For statutory marriages, a marriage certificate (Form E) is typically issued as evidence of the marriage.
Importance of a Marriage Certificate
For a petition for divorce to be successful, the petitioner must prove that a valid marriage exists and the fact that the marriage has broken down irretrievably. The marriage certificate serves as the primary proof of a statutory marriage. According to Section 32 of the Marriage Act, a marriage under the Act can be proved by:
1. A certificate of marriage filed in the office of the Registrar of the District.
2. A copy of the certificate signed and certified as a true copy of the certificate by the Registrar.
3. An entry in the marriage register book or a copy thereof certified as a true copy.
Still on the importance of a marriage certificate, the Court in the case of Motoh v. Motoh1 held that the production of a marriage certificate is the best method of proving a marriage under the Marriage Act.
Furthermore, the inevitable question at this juncture is: Is it possible for one to successfully file for divorce in Nigeria without producing a marriage certificate?
Proof of Marriage Without a Certificate
While the marriage certificate is the best proof of a statutory marriage, there are alternative methods to establish the existence of a marriage:
1. Eyewitness Testimony: In the absence of a certificate, credible oral evidence from witnesses who attended the marriage ceremony can be used to prove the marriage. This is particularly relevant for customary and Islamic marriages, where certificates are not always issued.
2. Secondary Evidence: A certified true copy of the marriage certificate from the registrar can be used as evidence, or a certified true copy of the entry in the marriage register book. A marriage certificate is a public document; hence, a photocopy of it is not admissible as evidence.
3. Presumption of Marriage: as noted by the Court of Appeal in the case of Menakaya v. Menakaya2 , if a couple has lived together as husband and wife, everything necessary to ensure the marriage’s validity is presumed in the absence of evidence to the contrary. Refusing to dissolve a statutory marriage because the certificate of marriage was not produced, despite evidence to prove the performance of a Christian marriage and the parties living together as husband and wife, will be very unfair. similarly, the Court of Appeal in the case of Motoh v. Motoh3 also held that where there is evidence of a ceremony of marriage having been performed in accordance with the rites of the church and parties to it have lived as husband and wife, and had cohabited together, everything necessary to ensure the validity of the marriage will be presumed in the absence of decisive evidence to the contrary.
The above decisions of courts have further buttressed the fact that court could presume the performance of a marriage in the absence of a marriage certificate; although the presumption could be rebutted with the production of evidence to the contrary.
How to Obtain a Certified True Copy of the Marriage Certificate
If the original marriage certificate is lost or unavailable, you can apply for a certified true copy. This process involves:
1. Application to the Registrar of Marriages at the local government where the marriage was celebrated.
2. Payment of necessary fees: The fees vary depending on the local government.
Conclusion
While the production of a marriage certificate is the best method to prove a statutory marriage, its absence does not preclude the possibility of filing for a divorce. The courts recognize alternative proofs such as eyewitness testimony, secondary evidence and legal presumptions
Disclaimer
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