A marriage is a relationship between the consenting parties to the marriage. A marriage can be void at the onset, or some factors can arise after the marriage that can render the marriage void.
The law requires that for one to conduct a marriage, they must first serve a notice to the registrar, notifying him/her of their intention to get married. Section 8 of the marriage Act provides that whenever any persons desire to marry, one of the parties to the intended marriage shall sign and give to the registrar of the district in which the party resides a notice in the prescribed form.
They should then conduct the marriage within three months of the notice. The act also requires that neither of the parties should be in any existing marriage, whatever the regime governing the marriage. There is also the issue of consent.
The marriage act provides that if the parties are below the age of 21, then they have to obtain the consent of their parents before contracting the marriage. If the parties are however over 21 years, they do not need the consent of their parents. The couple should be of different sex/gender as well. This is buttressed by article 45(2) of the constitution which provides that every adult has the right to marry a person of the opposite sex.
Parties intending to get marriage should ensure that they have the capacity and that they follow all the per-requisite procedures to carry out a valid marriage.
The marriage bill 2012, which will become the substantive law applying to marriages after its assented to, has given some restrictions on what parties in a marriage should not do and the kind of people that are not eligible for marriage.
It has expressly provided for the circumstances that will make a marriage void, and circumstances where a marriage can be vitiated by a party who feels aggrieved. Section 8 of the marriage bill provides that no person shall marry while under the age of eighteen years. The bill further prohibits the marriage of persons within a certain degree of consanguinity. It provides that a person shall not marry:-
a) his or her grandparent, parent, child, grandchild, sister, brother, great aunt, great uncle, aunt, uncle, niece, nephew, great niece or great nephew;
b) the grandparent, parent, child or grandchild of his or her spouse or former spouse;
c) the former spouse of his or her grandparent, parent, child or grandchild;
d) A person whom he or she has adopted or by whom he or she has been adopted.
Section 10 provides that, no man shall contract another marriage while married in a monogamous marriage contract, or if engaged in a polygamous or potentially polygamous marriage contract. The bill further prohibits any married woman from contracting another marriage while the present marriage is still subsisting.
The marriage bill expressly provides for void and voidable marriages. A void marriage is one that is a nullity from the beginning and is not legally binding on the parties. Section 12 provides that a marriage is void if, among others:-
a) Either of the parties is below the minimum the minimum age for marriage.
b) notice of objection to the intended marriage having been given was not withdrawn or dismissed; or
c) A person officiating thereat was not lawfully entitled to do so.
A voidable marriage on the other hand is a marriage that is not void on the outset but is voidable at the option of an aggrieved party.
These are things that need to happen/ be performed after the conduct of a valid marriage, the failure of which can invalidate a marriage at the option of the aggrieved party.
Section 15 of the marriage bill provides that a marriage is voidable if at the date of the marriage either party was and has ever since remained incapable of consummating the marriage, or when either party has ever since the celebration of the marriage remained subject to recurrent attacks of insanity.
The bill further provides that where there was a failure to give notice of intention to marry as required by section 16 that is a ground to vitiate the marriage. Once a marriage is vitiated, it ceases to exist. A vitiated marriage is not the equivalent of a divorce, divorce is a separate legal procedure, which relies on grounds of divorce.