Exclusive: Court marriage is not meant for Muslims by Saheed Akinola
Court marriage is not meant for Muslims
Introduction
In this write-up, we intend to x-ray the following:
- The concept and implication of contracting a statutory marriage (otherwise called court marriage in Nigeria) vis-à-vis Islamic marriage.
- The applicable inheritance laws that are applicable to both statutory and Islamic law marriage.
- Which law of inheritance will be applicable upon demise of a muslim who marries his wife under Act and later proceeded to subsequently ‘married’ one, two or three wives after the only wife recognized by statutory law?
- Was the Kwara State Sharia Court of Appeal decision in the case of mohammed v. mohammad (appeal no: kws/sca/cv/ap/il/14/202) delivered on wednesday, 3rd august, 2022, held per incuriam?
Islamic marriage system in Nigeria possesses the characteristics of a customary law marriage. However, the major distinguishing factors are that Islamic marriage is based on the tenets of the Holy Qur’an, sunnah of the prophet and Ijmah of Sahabah, while customary marriage is based on Native laws and custom. Also, Islamic law is codified in the verses of the Quran and authentic hadiths, while customary laws are majorly uncodified.
For a valid Islamic marriage which will entitle spouses to inherit each other after the demise of any of them, there must be consent of the waliy who gave the hand of the female spouse in marriage which must be done in the presence of witnesses, consent of both spouses and payment of mahr(either executed or executory).
A man, under Islamic law, is allowed to marry up to four wives if he so wishes and has the capacity to so do. In other words, an Islamic marriage is polygamous in nature. This is in contradistinction with what is applicable when it comes to marriage under Act, otherwise known as statutory marriage ( Court marriage according to street language in Nigeria)
A statutory marriage is a monogamous marriage which is interpreted to mean a marriage to one wife or husband at a time. It is the voluntary union of one man and one woman to the exclusion of all others. The locus classicus is the case of Hyde V. Hyde where it was stated as follows
“ I conceive that marriage as understood in Christendom may be defined as the voluntary union for life of one man and one woman to the exclusion of all others.
Under the Matrimonial Cause Act(MCA) section 69 Part IV states as follows:
‘marriage includes a purported marriage that is void, but does not include one entered into according to Muslim rites or other customary law”
The import of the above definitions and analysis is to the effect that once you voluntarily contract a statutory marriage, you have unequivocally chosen to be bound by Mrriage Act and Matrimonial Cause Act which nothing can relieve any of the parties of this knot, except death or divorce.
It is indeed criminal act, which attracts terms of imprisonment for a spouse, to contract another marriage whether customary or Islamic while a statutory marriage he/she contracted is still subsisting.
The Marriage Act section 33 (1) categorically prohibits whoever contracts a marriage under the Act when already married by Customary law to a third party from contracting marriage under act. In the same vein, in Section 35, the act prohibits any spouse from contracting marriage by customary law when already married under the Act
Indeed, anybody who does any of the aforementioned acts commits an offence carrying a maximum punishment of 5 years imprisonment
For avoidance of doubt, the sections are hereunder reproduced seriatim:
33(1) 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
‘35. any person who is married under this Act, or where marriage is declared by this act to be valid, shall be incapable, during the continuance of such marriage, of contracting valid marriage under customary law…….’
46 whoever contracts a marriage under the provision of this Act, or any modification or re-enactment thereof, being at the time married in accordance with customary law to any person other than the person with whom such marriage is contracted, shall be liable to IMPRISONMENT FOR FIVE YEARS
47.whoever having contracted marriage under this Act, or any modification or re-enactment thereof, or under any enactment repealed by this Act, during the continuance of such marriage contracts a marriage in accordance with customary law, shall be liable to IMPRISONMENT FOR FIVE YEARS
Shariah or Administration of estate law?
The position of the law is clear as far as inheritance is concerned that anybody who contracts a valid statutory Marriage and dies intestate, it is the Administration of estate that will be applicable to the distribution of his/her estate. The fact that such a person dies a muslim can not save his/her estate from being distributed according to Administration of Estate Law.
Can Muslim die intestate?
Ceteris paribus, a muslim does not die intestate because inheritance in Islam is divine-the shares of the legal heirs to the deceased have been codified in the Qur’an and hadith.
However, where a muslim chooses to ignore the dictates of his/her deen and opts for Statutory marriage which criminalizes polygamy, and states that Administration of Estate Law will be applicable where the person dies without a will, it is his choice. Therefore, such a muslim has definitely died intestate. This is like a person that takes a loan with interest in bank, when it is due date for repayment, he now claims that he is a muslim and Islam prohibits payment of Interest. It is too late in the day!
Distribution of Muslim estate according to Shariah: Compulsory or optional?
Distribution of Muslims’ estate according to the prescribed Islamic law is mandatory on all Muslims. Therefore, Muslims are prohibited with stern warning and punishment attached to such act by Allah in the Qur’an
Immediately after Aayah 11 & 12 of chapter 4 of the Qur’an, which deal with the inheritance shares of the heirs to the deceased, Allah promises those who follow the law of inheritance paradise and promise those who choose otherwise, hellfire. (May Allah forbid us from the torment of hellfire)
Surah Al-Nisa 4. Verse 13-14
تِلْكَ حُدُودُ ٱللَّهِ ۚ وَمَن يُطِعِ ٱللَّهَ وَرَسُولَهُۥ يُدْخِلْهُ جَنَّتٍۢ تَجْرِى مِن تَحْتِهَا ٱلْأَنْهَرُ خَلِدِينَ فِيهَا ۚ وَذَلِكَ ٱلْفَوْزُ ٱلْعَظِيمُ
These are the limits [set by] Allah, and whoever obeys Allah and His Messenger will be admitted to gardens [in Paradise] under which rivers flow, abiding eternally therein; and that is the great attainment.
وَمَن يَعْصِ ٱللَّهَ وَرَسُولَهُۥ وَيَتَعَدَّ حُدُودَهُۥ يُدْخِلْهُ نَارًا خَلِدًۭا فِيهَا وَلَهُۥ عَذَابٌۭ مُّهِينٌۭ
And whoever disobeys Allah and His Messenger and transgresses His limits – He will put him into the Fire to abide eternally therein, and he will have a humiliating punishment.
The implication of the above Aayaat is that those who choose to contract statutory marriage knowing full well that their estate will be subject to the Administration of Estate Law; or those who distribute their property to their legal heirs in their will, in opposition to the Quranic injunctions, have indeed contradicted the clear injunctions of Allah as stated in the Qur’an.
My opinion on the decision of the Kwara state Sharia Court of appeal in the case of Mohammed v. Mohammad (appeal no: KWS/SCA/CV/AP/IL/14/202) delivered on Wednesday, 3rd august, 2022.
The judgement delivered by the court in the above matter has generated a lot of comments which are either to the praise of the court and Kadi while some comments are derogatory to the court and the honourable Kadi of the court.
Going through the opinions that alluded to the ‘fact’ that the decision was held per incuriam, one will discover that they are all premised on religious sentiments and are purely academic exercise that is devoid of empirical legal analysis.
The facts of the case are straightforward. One late Major Mohammed Adeniyi (the deceased) married the 2nd Appellant, one EVANG (MRS) OLABISI MOHAMMED under the Common Law’s Statutory Marriage System. He later married other three women as his 2nd, 3rd and 4th (later divorced) wives in accordance with Islamic law. The marriages were blessed with children.
While the 2nd Appellant who happened to be a Christian and was married under the Act claimed to be solely, together with her child (1st Appellant), entitled to inherit the deceased as stipulated under the Adminstration of Estates Law, the Respondents (other wives and their children) claimed that they are also entitled to inherit from the estates since the deceased died as a Muslim.
The KWASCA agreed with the appellants and ruled against the Respondents, declaring, at pages 12-13 of the judgment, as follows:
” *…the estate of late Major Muhammed Adéníyì would ordinarily have been governed by Islamic Law if he had not by own choice contracted a valid and subsisting marriage under the Act with the 2nd Appellant.* *Dissolution of a Marriage under the Act cannot be presumed, speculated or conjectured as erroneously done by the trial court.*
*Definitely, the conduct of a marriage under the Act (which is also a Christian marriage) is an act that conflicts which (sic: with) Islamic religion which the deceased professed. Certainly too, the subsequent Islamic conducts of the deceased including narrating other wives, dying and being buried as a Muslim etc could not, by the state of the Nigerian Law, legalize the illegality or change the law that should govern his intestate succession – his chosen Adminstration of Estates Law”.*
The honourable court has correctly stated the positions of law in concluding that Islamic law of inheritance was not applicable to the estate of the deceased who contracted statutory marriage and subsequently married three other wives according to Islamic law. Any other contrary position will have nothing to stand on rather than religious sentiments and ‘what ought to be syndrome’.
By virtue of the provision of Section 35 of marriage Act, the subsequent marriages are null and void and by virtue of the provision of section 46 of the Act deceased is liable to maximum of Five years imprisonment if prosecuted and found guilty while alive.
Separation between the spouses of a statutory marriage can not be equated with the divorce no matter how long the separation is-they are still considered as husband and wife until the court pronounce them divorced.
Many Muslims find themselves in this entanglement because of erroneous belief that they will need Statutory marriage certificate to travel abroad as couple, this is not so. Any certificate from any organization will suffice. While some erroneously believe that they choose whichever pleases them from the law of Allah.
This is a great lesson to Muslims who chooses whichever they want from the injunctions of Allah in the Qur’an and the rulings of the Prophet in his authentic Hadiths and abandon whichever rulings that do not align with their ‘Philosiphy’. They use their brain to rationalize the laws of Allah who is all-knowing. Allah says in the Glorious Qur’an Suratul Baqarah verse 85:
…So do you believe in part of the Scripture and disbelieve in part? Then what is the recompense for those who do that among you except disgrace in worldly life; and on the Day of Resurrection they will be sent back to the severest of punishment. And Allah is not unaware of what you do.
﴿85﴾…………. أَفَتُؤْمِنُونَ بِبَعْضِ الْكِتَابِ وَتَكْفُرُونَ بِبَعْضٍ ۚ فَمَا جَزَاءُ مَن يَفْعَلُ ذَٰلِكَ مِنكُمْ إِلَّا خِزْيٌ فِي الْحَيَاةِ الدُّنْيَا ۖ وَيَوْمَ الْقِيَامَةِ يُرَدُّونَ إِلَىٰ أَشَدِّ الْعَذَابِ ۗ وَمَا اللَّهُ بِغَافِلٍ عَمَّا تَعْمَلُونَ
Islam is a complete way of life. It regulates all the affairs of men to create comfort for us and not hardship. Therefore, let us enter the fold of Islam totally by following the Quran and the sunnah of the prophet. Allah says in the glorious Quran in Suratul Baqarah verse 208:
يَا أَيُّهَا الَّذِينَ آمَنُواْ ادْخُلُواْ فِي السِّلْمِ كَآفَّةً وَلاَ تَتَّبِعُواْ خُطُوَاتِ الشَّيْطَانِ إِنَّهُ لَكُمْ عَدُوٌّ مُّبِينٌ ﴿٢٠٨﴾
O you who have believed, enter into Islam completely [and perfectly] and do not follow the footsteps of Satan. Indeed, he is to you a clear enemy.
Options available to Muslims who find themselves in this situation
Here are the options available and their implications:
Divorce
since there is no other known way that is available in law to free oneself from the consequential effects and obligations attached to statutory marriage other than divorce, some people opine that if the spouses realize that the marriage contracted is in contradistinction to the dictates of the Quran and out of fear of Allah want to remedy the situation, they will have to go through the rigour of divorce.
Whether the ritual of their marriage at the time of contracting the statutory marriage can pass the test of validity of Islamic marriage is another thing entirely. The implication of this is that if the ingredients of Islamic marriage did not exist at the onset, it means the children of that marriage are not entitled to inheritance under Islamic marriage. This issue requires Islamic Scholars verdict based on facts and peculiarities of each matter.
Writing of one’s will in line with common law
It is also opined by some people that the issue in Muhammed’s case above would have been cured by writing a will under common law and dispose off his asset therein. This position is correct legally to some extent since there is testamentary freedom under common law that one can will one’s property to whomever and however one chooses. It is the opinion of this school that this would have availed the other wives married under Islamic law and their children the opportunity to inherit from their deceased estate.
As good and beneficial this looks, only Allah knows the punishment the deceased would face in the hereafter bearing in mind the promise of hellfire by Allah to those who do not follow the way and manner of Islamic inheritance distribution method prescribed in the Qur’an (Qur’an 4 v 14).
Incorporation of Company
Another option that is available to a person that finds himself in this situation is that he can incorporate a limited liability company and make his wives directors and shareholders. A limited liability company has a perpetual succession and does not die with one of the owners of the company. If the company is liquidated, the asset will be shared among the stakeholders
Writing a Wasiyyah
Another option that could be explored in this situation is to write a wassiyyah and state therein that your property must be distributed according to islam and that anybody who changes your wassiyyah will be the one that will bear the consequence:
“Then, whoever alters it [i.e. the bequest] after he has heard it – the sin is only upon those who have altered it.” (Surah al-Baqarah 2:181).
This is the most correct and pragmatic approach that can cure this quandary. However, this wasiyyah must comply with the form laid down by Will Act so as for it to pass validity test if it is eventually challenged by a wife that was married under Act.
Even though there is no specific format to be followed to write an enforceable wasiyyah, for a wasiyyah to be recognized by court in this circumstance, it must pass the validity test of common law will. It is preferable for it to be lodged at the probate Registry
In conclusion, whatever Allah and his messenger enjoin us to do is for our own good. Allah says in the glorious Qur’an
…….. .يُرِيدُ ٱللَّهُ بِكُمُ ٱلْيُسْرَ وَلَا يُرِيدُ بِكُمُ ٱلْعُسْرَ …….
…..Allah intends for you ease and does not intend for you hardship……
Simple Islamic marriage would have saved the deceased and the family from this quagmire
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