CONTRIBUTOR: TOBENNA MOGBO
Introduction
Nigeria, being a nation of rich diversity, is celebrated for its various traditions and legal systems. These diversities are taken cognisance of in the institution of marriage, thereby influencing the contract of marriage to be governed primarily by three distinct frameworks: Statutory Marriage (under the Marriage Act), Islamic Marriage (under Sharia law) and Customary Marriage (under the native law and custom). While all three are deeply respected and legally recognized, their distinct principles have, at times, led to questions of application, especially in complex personal circumstances.
Recent developments in our legal landscape, particularly the landmark decisions from the Court of Appeal delivered on the 3rd Day of September, 2025 in the case of Adekunle & Ors v. Ahmad (2025): CA/ABJ/S/891/20243 where it was held that the subsequent Islamic marriage of a Muslim man who had earlier contracted Statutory marriage is valid and the statutory marriage will not hinder the estate of the deceased from being governed by Islamic Law, has brought renewed clarity and, for many, a clearer understanding of the boundaries and implications of these two significant forms of union.
Understanding the Foundations: Statutory vs. Islamic Marriage
Before diving into the Court of Appeal’s decision in ADEKUNLE & ORS V. AHMAD (2025), let’s briefly recap the essence of these two marriage systems:
- Statutory Marriage: This form of marriage got its definition from the Locus classicus case of Hyde v. Hyde (1860), where the court defined marriage to be “The voluntary union for life of one man and one woman to the exclusion of all others”[1]
It is a civil, monogamous union established and governed by the Marriage Act, Cap. M6, LFN 2004. It involves specific procedural requirements, including notice of marriage, celebration in a licensed place (church, registry, etc.), and registration. Its core principle is monogamy, meaning a man can only be married to one woman and a woman can only be married to one man at a time. Any subsequent marriage during the subsistence of a statutory marriage is bigamous and illegal.[2]
- Islamic Marriage (Nikah): Islamic Marriage is a marriage that is conducted according to the tenets of Islamic law (Sharia), which is observed in various parts of Nigeria, particularly in the Northern. It is a contract between a man and a woman, based on mutual consent (offer and acceptance), the presence of witnesses, and the payment of a dowry (Mahr). A certificate is not given. Unlike statutory marriage, Islamic law permits polygamy meaning a man can contract Islamic Marriage with more than one woman.[3]
Historically, the coexistence of these systems has sometimes led to legal conundrums, as previously experienced in the case of Mohammed v. Mohhamed[4] where a similar judgement to that of Adekunle & Ors v. Ahmad was delivered by the Court of Appeal, Kwara judicial division.
The Appellate court noted that Section 35 of the Marriage Act which prohibits anyone who had earlier contracted a statutory marriage from contracting another marriage relates to customary marriage and not Islamic marriage. This is due to the fact that Islamic Law is not a subset of customary law but a distinct Law. There’s a general misconception that Islamic Law is a form of Customary Law, however, this is not correct as the court in the case of Agbebu v. Bawa[5] held that Islamic law is recognised as one of the three legal systems in Nigeria, that is, common law, Islamic law and customary law. To further substantiate the above position, the Supreme Court in the case of Alkamawa v. Bello[6] held thus;
“Islamic law is not customary law as it does not belong to any particular tribe. It is a complete system of universal law, more certain, permanent and more universal than the English Common Law.’’
The Adekunle & Ors v. Ahmad (2025) Decision: A Defining Moment
The case of Adekunle & Ors v. Ahmad presented the Court of Appeal with a critical opportunity to re-examine and delineate the status of these two marriage systems. The dispute arose from a complex family matter involving succession rights and property claims, where the deceased had earlier contracted an statutory marriage with a woman, and going ahead to contract an Islamic marriage thereafter.
The court in this case analyzed some provisions of the Marriage Act, in order to reach it’s decision regarding a subsequent marriage under Islamic marriage.
Section 33 (1) of the Marriage Act[7] provides thus:
“No marriage in Nigeria shall be valid where either of the parties thereto at the time of the celebration of such marriage is married under customary law to any person other than the person with whom such marriage is had.”
Section 35 of the Act further provides thus:
“Any person who is married under this Act, or whose marriage is declared by this Act to be valid, shall be incapable, during the continuance of such marriage, of contracting a valid marriage under customary law, but, save as aforesaid, nothing in this Act contain shall affect the validity of any marriage contracted under or in accordance with any customary law, or in any manner apply to marriage so contracted.”
After a thorough look into these provisions the Court of Appeal made several pivotal clarifications, which are:
- Reaffirmation of Distinct Legal Spheres: The Court unequivocally reaffirmed that Statutory Marriage and Islamic Marriage operate within distinct and separate legal frameworks, one is governed by the Marriage Act while the other is governed by the Islamic law which is not generally applicable. It emphasized that both marriages have distinct requirements which must be strictly adhered to for a marriage to be valid under that particular system.
- The Indispensability of Formal Procedures for Statutory Marriage: An important takeaway was the courts effort in re-emphasizing the formal and procedural requirements for a valid Statutory Marriage. The Court held that mere cohabitation, even with religious ceremonies or public declarations, does not, by itself, transform a union into a Statutory Marriage if the strict provisions of the Marriage Act (like notice, celebration in a licensed place, and registration) are not met. Individuals can not stumble on/ or claim a statutory marriage without consciously following the formalities.
- Full Recognition of Islamic Marriage Validity within its Purview: Also, the Court affirmed the full legal validity of Islamic marriages as long as it meets the requirements of Islamic law, particularly within jurisdictions where Sharia is applicable or to those who consents to being governed by Islamic law. It underscored that such marriages are not “lesser” or secondary to statutory marriages but are complete and self-sufficient legal institutions in their own right, governing issues like marriage, property, succession, and dissolution according to Islamic principles.
- Legality of a double decker marriage: While refusing to establishing a hierarchy, the Court’s decision strongly implies that where an individual has formally entered a valid Statutory Marriage, he is not hindered from contracting marriage under the Islamic law as the provisions of sec 35 of the Marriage act only prohibits a consequent customary marriage, therefore, a subsequent Islamic marriage to another woman would not amount to bigamy.
Implications for Nigerians
The Court of Appeal’s decision in Adekunle & Ors v. Ahmad (2025) has profound implications for individuals and the legal landscape:
- Clarity on Requirements of Marriage: Each marriage has its nature and requirements so Couples now have clearer guidance before contracting any form of marriage they please to contract. There’s less room for ambiguity regarding whether a union is statutory or Islamic, reducing potential disputes down the line.
- Statutory Monogamy is Now Limited: For those in Statutory Marriages, the decision reinforces the sanctity and exclusivity of their union, however, creating a loophole in the marriage act that now limits the monogamous status of a statutory marriage. A statutory marriage does not invalidate an Islamic marriage conducted afterwards.
- Empowerment of Islamic Marriage: For those entering Islamic marriages, the decision affirms the full legal recognition of their union under Islamic law, ensuring that their rights and obligations are governed by those principles without undue interference from the Marriage Act’s provisions. Also, a man governed by the Islamic law can now legally evade the monogamous status of the statutory marriage, and is now legally immune to the punishment of bigamy.
- Property and Succession: The greatest impact will be felt in matters of property distribution and succession. Where a man lived and died a Muslim, his estate must be shared according to Islamic Law whether or not he has contracted a statutory marriage.
- Need for Legal Advice: The decision underscores the importance of seeking legal counsel when planning a marriage, especially if there are complexities, inter-faith considerations, or previous relationships involved.
CONCLUSION
The Court of Appeal’s decision in Adekunle & Ors v. Ahmad (2025)[8] and the decision in Mohammed v. Mohhamed [9]marks a significant turn around in Nigerian family law. What we recognized before these decisions was that any marriage contracted after a statutory marriage is null and void, however, now this position has changed. Whether or not the position of the court in these cases has accurately interpreted the mind of the law makers when drafting sec 35 of the Marriage Act is arguable. Whether the court should have applied the mischief rule as opposed to the literal interpretation used is still a debate. However, until the Supreme Court being the apex court makes a contrary decision to that of the Court of Appeal, the decision in Adekunle & Ors v. Ahmad (2025) remains the law.
Reference
- Hyde v. Hyde (1860) L.R.I PD. 130, ↑
- Marriages and their legal framework in Nigeria available on https://nigeria.action4justice.org/legal_areas/womens-rights-focusing-on-marriage-rights/marriages-and-their-legal-framework-in-nigeria/#:~:text=130,any%20other%20licensed%20public%20place accessed on September 2025. ↑
- ibid ↑
- Appeal No: KWS/SCA/CV/AP/IL/14/2022 ↑
- (1992) 6 NWLR (Pt. 245) 80 @ 87 ↑
- (1998) 6 SC page 92 at 88102 Para 2. ↑
- Cap. 218 Laws of the Federation of Nigeria, 2004 ↑
- ibid ↑
- ibid ↑
- ibid ↑
- ibid ↑
