Clarifying Statutory And Islamic Marriages Under Nigerian Family Law: Insights From Recent Court Of Appeal Decisions

By Lanase Usman A[1]

ABSTRACT

The story of Mankind begins with the Marital union of Adam and eve. Human being by nature craves companionship. This is an innates feature inherent in all humans. It is common knowledge that once a person attains marriageable age, society expects that they have a partner whom they are expected to spend the rest of their life with.  Hence, culturally and religiously, marriage has been institutionalized and highly regulated. Since law seeks to also regulate human relationship, legally, marriage is also regulated by statutes. This is why countries of the world have their respective legislations regulating marriage. Typically, some of the issues normally regulated by Marriage laws include but not limited to age of parties, consents, nature and types of marriage (Statutory marriage, Islamic marriage and Customary marriage), child custody, property distribution, marital offenses and obligations, divorce amongst others. This article seeks to examine the legal implication of statutory marriage vis-à-vis the recent decision of court in the case of Mohammed v. Mohhamed (2024) and Adekunle & Ors v. Ahmad (2025).

Key words: Statutory marriage, Islamic Marriage, Islamic marriage, Bigamy.

1.0: INTRODUCTION

Marriage simpliciter is generally a union of man and woman[2]. It involves two persons of opposite sex coming together as husband and wife. Marriage is a legally and socially sanctioned union that is regulated by laws, rules, customs, beliefs, and attitudes that prescribe the rights and duties of the partners and accords status to their offspring (if any)[3].

Although, in some countries, marriage between people of the same sex is now permitted[4]. The current position of the Law in Nigeria is that marriage can only be done between a man and a woman[5]. Section 7 of the Same Sex Marriage (prohibition) Act, 2015[6] defines marriage to mean a legal union entered into between persons of opposite’s sex in accordance with the Marriage Act, Islamic Law or Customary Law.

Consequently, in Nigeria, the recognized forms of marriage under the Act includes: Statutory marriage, Islamic marriage and Customary marriage[7]. While statutory marriage is a monogamous marriage being a safe option for couples who intend to have a legal marriage that recognizes one man and a woman, Islamic marriage and Customary marriage on the other hand permits polygamy. Statutory marriage is therefore mostly accepted by individuals who wish to have a monogamous marriage regulated by the Matrimonial Causes Act[8] and the Marriage Act[9].

In a Statutory marriage[10], where either of the parties is at the time of marriage lawfully married to another person, the marriage even if contracted will be void. Section 33 and 35 of the Marriage Act further provides that where a person has been legally married under customary law, he cannot go ahead and marry another person under the statutory act, this is because there has been a valid married under customary law. The rationale behind this is simple. Statutory marriage is monogamous.

However, where the person contracts customary marriage, and he goes ahead to marry the same person to do a statutory marriage under the act, the marriage is valid and not void. The law also prescribe penalty for marrying another person while having a valid marriage. The punishment is 5 years imprisonment pursuant to Sections 46 and 47 Matrimonial Causes Act[11]. The criminal code also prescribes 7 years imprisonment in that regard by section 370 of the Act[12].

The recent decision in the case of Mohammed v. Mohhamed (2024)[13] and Adekunle & Ors V. Ahmad (2025)[14] has sparked argument as to the current position of the Law in Nigeria on the status of Statutory marriage. These different but similar decisions appear to have derogated from what is generally known of the implication of conducting a subsequent marriage after a valid and subsisting statutory marriage. Comments have been made by lawyers and non-lawyers alike and it appears to many that the court has departed from the settled position of Law on the implication of contracting subsequent marriage after contracting an earlier valid and subsisting statutory marriage. It is therefore important to clarify these issues and set the record straight to ensure clarity and to prevent unnecessary confusions as far as Nigeria Family is concerned. This article concludes that the court of Appeal has not in any way departed from the settled position of Law but rather interpreted the provisions of the Law as expected and as part of its constitutional duty by section 6 of the constitution of the Federal Republic of Nigeria, 1999 as amended.

2.0: BRIEF FACT OF MOHAMMED V. MOHHAMED (2024) LPELR-62831 (CA)

This case involves the estate of Major Mohammed Arogun Adeniyi, a Muslim who died on the 18^th of October, 2020 at the Nigeria Army Barracks and was buried in accordance to Islamic rites. The deceased was survived by aged parents, children, and the 1^st and 2^nd Appellants whom the deceased married under the Islamic Law while the Respondent was married to the deceased under the Marriage Act. On his demise, the Nigerian Army paid to the 1st Respondent, the deceased’s first daughter being his next of kin in the record of the Nigerian Army, a sum of (36,000,000.00 (Thirty-Six Million Naira) as the deceased’s emoluments, insurance, gratuity and other entitlements. It was when it became clear that the 1^st Respondent was not willing to share the said money and properties of the deceased that the Appellants initiated an action at the trial Upper Area Court against the 1st Respondent.

The jurisdiction of the Upper Area Court to hear and determine the suit was challenged by the 2^nd Respondents (First wife of the deceased) on the basis that the deceased was a Christian, married under the Marriage Act and his estate should be administered according to the Administration of Estates Law of Kwara State, excluding the appellants. The Upper Area Court however dismissed this objection. On further appeal to the Sharia Court of Appeal. Sharia Court of Appeal allowed the appeal and ruled that Islamic law did not apply, as the deceased was not Muslim.

Not unnaturally, the appellant appealed against the decision to the Court of Appeal. The Court of Appeal allowed the appeal while noting that that once a person is born into Islam or converted into Islam, he has become a Muslim and Islamic Law becomes the personal law of the person. Thus, the deceased cannot opt out of the application of Islamic Personal Law except he denounces his Islamic faith in the prescribed manner, which was not the case in the instant case as mere contracting of a statutory marriage does not mean renouncing of Islamic Faith. Moreover, Section 1(1) (a) and (b) of the Administration of Estate Laws of Kwara State excludes the deceased estate from being governed by the Estate law since the deceased died a Muslim and even contracted a Muslim marriage and not marriage under customary law as contemplated by the Estate Law of Kwara State maintaining that Islamic Law is different and distinct from Islamic Law. The court held that the Respondent Marriage under the Act cannot operate to rob the administration of the deceased estates the benefit of being governed by Islamic Law as erroneously held by the lower court.

3.0: BRIEF FACT OF ADEKUNLE & ORS V. AHMAD (2025) LPELR-81978 (CA)

This case involves the estate of Alhaji Jimoh Adekunle. The dispute arose when Maryam Ahmad (Respondent), who was married to the late Alhaji Jimoh Adekunle under Islamic law, filed a claim in the Area Court for the distribution her husband’s estate. The Appellants (first wife of Alhaji Jimoh who was married under the Marriage Act with her two children), challenged the Area Court’s jurisdiction, arguing that because the deceased had a valid and subsisting statutory marriage with the 1^st Appellant, his estate should not be distributed under Islamic law.

However, the court held otherwise and delivered ruling that it has jurisdiction since the deceased died as a Muslim. On further Appeal to the Sharia Court of Appeal, Federal Capital Territory, Abuja, the court held that since the deceased lived and died as a Muslim, contracted marriage under Islamic Law and all parties involved were Muslims, Islamic Personal Law governed the distribution of his estate. The Appellants thereafter appeal to the court of Appeal. The Court of Appeal dismissed the Appellants’ appeal, holding that Islamic law is a distinct and complete legal system, separate from customary law, and is constitutionally recognized under Section 277 of the 1999 Nigerian Constitution (as amended). The court proceeds to hold that while Section 35 of the Marriage Act prohibits contracting a customary marriage during the subsistence of a valid statutory marriage, it does not prohibit an Islamic marriage, as Islamic law is not a subset of customary law.

4.0: LEGAL IMPLICATIONS OF THE CASE CITED ABOVE

4.1.0: DIFFERENCE BETWEEN ISLAMIC LAW AND CUSTOMARY LAW

By virtue of section 244(1) and (2)[15] of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), an appeal shall lie from decisions of a Sharia Court of Appeal to the Court of Appeal as of right in any civil proceedings before the Sharia Court of Appeal with respect to any question of Islamic personal law which the Sharia Court of Appeal is competent to decide. The purpose of this is clear. An appeal is an invitation to a higher court to review the decision of a lower court, and to decide, whether on proper consideration of the facts placed before it and the applicable law, the lower court arrived at a correct decision. See Oredoyin v. Arowolo (1989) 4 NWLR (Pt. 114) 172. Essentially, an appeal challenges the reasons for the conclusion of a trial court.

It is evident from the above cited authorities that the appellants in Mohammed V Mohhamed (2024) and Adekunle & Ors V. Ahmad (2025) approached the court of Appeal to review the decisions of the lower courts. The court of appeal in the exercise of its statutory power has reviewed the respective lower court decisions and has come to an irresistible conclusion that Islamic Law is different and distinct from Customary law[16].

It is now abundantly clear that Islamic law is not the same as customary law as it does not belong to any particular tribe. Although, this position was reiterated in the case of Alkamawa v. Bello (1998) 6 SC 92 at 102, it appears that a lot people still struggle with the difference between the two different and distinct laws. It is hoped that this case, a restatement of the law, will help reinforce the position of law with respect to the difference between the two laws. Sources of Islamic Law includes the Quran, Hadith, Ijma (consensus of opinion of scholar), Qiyas (analogical deductions) and Fatwa of recognized Muslim scholars[17]. Islamic personal law is recognized in the constitution and court has held that marriage conducted in accordance with Islamic law is constitutionally recognized. In Magaji v. Matari, 2000 LPELR 1813 (SC), the apex court recognizes the constitutionality of the Islamic Personal Law regarding a marriage conducted in accordance with that law, including a question relating to the validity or dissolution of such marriages. Also, constitutionally recognized, are matters regarding waqf, gift, will or succession.

Reasonably, if Islamic Law and Customary are the same or if Islamic Law is a subset of customary Law, the 1999 Constitution would not have created separate courts for Islamic personal law and Customary law pursuant to section 260 and 265 of the 1999 Constitution (as amended). The court in Mohammed v Mohammed (Supra) laid emphasis on this distinction.

Customary law on the other hand has been defined as a mirror of accepted usage[18]. It is existing native law and custom and not ancient custom with which present generation cannot be linked. It has been defined as an unwritten law and it depends on what the appropriate authority believes or is persuaded to believe by evidence as customary law. That is, customary law is a question of fact to be proved by evidence. See Omaye v. Omagu (2008) 7 NWLR (Pt. 1087) 447.

5.0: SECTION 33 AND 35 OF THE MARRIAGE ACT

Section 33 of the Marriage Act provides as follows:

No marriage in Nigeria shall be valid where either of the parties thereto at the time of the celebration of the marriage is married under customary law to another person other than the person to who the statutory marriage is had

The above sections relate to instances where statutory marriage will be void. It provides that both parties as at the time of getting married under the Act must not be in a valid and subsisting marriage under customary law. This means both parties must be single or if earlier married must have been divorced properly, otherwise, the marriage will be invalid. Thus, in view of the position of law that Customary law is not the same as Islamic law, it is reasonable and safe to conclude that both parties who may wish to contract a statutory marriage may be legally married under Islamic law and their subsequent statutory marriage will be valid since it is not a customary law.

Section 35 of the Marriage Act also provides that:

Any person who is married under the 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.

This section has been judicially recognized. In the case of Mgbodu v. Mgbedu (2018) LPELR- 43770 (CA) the court held that any person who is married under the Act shall be incapable, during the continuance of such marriage, to contract a valid marriage under customary law.

However, the court in Mohammed v. Mohhamed (2024) LPELR-62831 (CA) noted that the above section only applies to customary law and not Islamic law since Islamic law is not a form of customary law.  Islamic law does not belong to any particular tribe[19]. It is a complete system of universal law, more certain and permanent and more universal than even the common law. See Mohammed & Ors V. Mohammed & Ors (supra)

The implication of the above is that despite the fact that it appears that the intendment of the legislators as at the time of drafting the marriage Act is to ensure that statutory marriage remains a monogamous marriage and that customary marriages includes Islamic marriage, the correct interpretation of Section 35 of the Marriage Act in view of Supreme Court decision like Alkamawa v. Bello (1998) 6 SC 92 at 102 is that, by following the literal rule of interpretation, Islamic law is excluded. Based on decided cases cited earlier, the position of the law now is that Muslim men can now contract statutory marriage and proceed to contract another marriage provided that the subsequent marriage is not customary but purely Islamic.

In Mohammed v. Mohhamed (2024), the court held that the subsequent marriages of the deceased under Islamic Law, which he had chosen, were in consonance with his constitutionally guaranteed right under Section 38 (1) (a) and (b) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). Moreover, a male Muslim is free to marry a Christian woman under the Marriage Act or any customary law. Being a Muslim, the deceased is entitled to marry up to a maximum of four (4) wives at a given time[20]. The court further held that Section 1(1) (a) and (b) of the Administration of Estate Laws of Kwara State excludes the deceased estate from being governed by the Estate law since the deceased died a Muslim and the Administration of Estate Law of Kwara State excludes estate of anyone whose personal law is Islamic law. Thus, the Respondent Marriage under the Act cannot prevent the administration of the deceased estates the benefit of being governed by Islamic Law as erroneously held by the lower.

6.0: WAYFORWARD

From the above analysis, it is evident that Islamic law is different and distinct from Customary Law. It is also evident that Marriage under the Act will not operate to rob the estate of a deceased Muslim from being governed by Islamic law. Conflict then arises as to how to connect this legal reality with the intendment of law on the status of statutory marriage as a monogamous marriage.

As it stands, the literal interpretation of the law appears to favor people of Islamic faith. There is an opportunity for a Muslim man to contract marriage under the Act and proceed to conduct another marriage, albeit not customary marriage but Islamic marriage. The interpretation of the court that Islamic law is different from customary law in my opinion has created a loophole, considering the fact that as at the time of enacting the Marriage Act, there is still a general belief, albeit, a misconception that Islamic Law is a form of Customary Law.

This is the rationale behind the court position in Adekunle & Ors V. Ahmad (2025) that:

I am however not oblivious to the clear provisions of Section 35 of the Marriage Act which provides that: Any person who is married under the 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.”

“The above only apply to restrict the operation of marriages under the customary laws but not as in the present case, where the deceased’s marriage with the Respondent was contracted under Islamic Law. Let me make it abundantly clear that Islamic Law is not a specie of customary law, as it does not belong to any particular tribe. It is a complete system of universal law, more certain and permanent and more universal than even the common law. See Mohammed & Ors V. Mohammed & Ors (supra) and Alkamawa V. Bello (1998) 6 SC 92 at 102.”

“Furthermore, Section 7 of the Same Sex Marriage (prohibition) Act, 2015 defines marriage to mean a legal union entered into between persons of opposite’s sex in accordance with the Marriage Act, Islamic Law or Customary Law. This implicitly means three distinct forms of marriages exists in Nigeria, namely, statutory marriages (under Marriage Act) Islamic marriages and customary marriages.”

Thus, to ensure clarity, there is need for an amendment of the Marriage Act to expressly state the relationship between statutory marriages and subsequent Islamic marriages. There should be a clear provision that will address whether contracting a statutory marriage extinguishes the right to contract additional Islamic marriages or whether Islamic marriages should be expressly exempted from the prohibition. This will ensure certainty, as courts are currently filling in the gaps left by the Act.

Most of our family laws are outdated and Legal reform is necessary in that regard considering the dynamic nature of law itself and the rising growth of inter-religious marriage in Nigeria. People are now liberal in terms of marriages in Nigeria[21]. It is not uncommon for Muslim men to marry more than one woman (Muslim or Christian). Religiously, it is permissible. Quran 5 (Al-Maidah) verse 5 permits Muslim men to marry Christian women alongside Muslim women provided that the number does not exceed four as prescribed in Quran 4 (An-Nisai) verse 3.

There is also a pressing need for a harmonized framework that aligns statutory marriage, Islamic marriage, and customary marriage, particularly on succession and property distribution. This will cover for situations where a person contracts more than one form of marriage so as to ensure fairness to all their heirs.

What more, intending couples should also undergo mandatory legal counseling at marriage registries so as to understand the legal implications of conducting statutory marriages in Nigeria under the Act. For Muslims, this counseling should entail the distinction between statutory and Islamic marriages, and how each may affect inheritance, divorce, and succession rights.

From the comments online and offline, it is obvious that a lot of people still struggle to grasp the legal implications of statutory marriage, Islamic marriage, and customary marriage. Public enlightenment is therefore crucial and will help in this regard.

7.0: CONCLUSION

Marriage is an integral part of human existence. It has been mentioned earlier that apart from culture and religion, the law also regulates the concept of marriage since it involves an important part of human relationship that involves right, duties and obligations of parties. Moreover, depending on the nature and type of marriages contracted, different legal implication arises. In the case of a Statutory marriage, it is believed to be strictly monogamous with bigamy being an offense under the Act, while for Customary marriages and Islamic marriages, they recognize and permit polygamy.

The recent cases of Mohammed V Mohhamed (2024) and Adekunle & Ors V. Ahmad (2025) is a good precedent. It has laid the foundational basis upon which future legal reform will be based with respect to the difference between the Islamic Law and Customary law in relation to marriage relationship. As it stands, the law remains that until the Supreme Court rules otherwise, a Muslim man who had earlier contracted a statutory marriage may, without any restriction, proceed to conduct another marriage, provided that the subsequent marriage was conducted in line with Islamic Law. This, appears to contradicts the intendment of the law on the monogamous status of Statutory marriage. It is therefore hoped that amendment will be done in this regard to ensure clarity on whether contracting a statutory marriage absolutely extinguishes the right to contract another Islamic marriage or whether Islamic marriages should be expressly exempted from the prohibition.

[1] Usman A. Lanase, Esq, LLB, BL, AICMC. He is an Abuja based lawyer and can be reached via: 08106646768. Email: Lanaseabidemi@gmail.com. He is a writer, researcher and lover of Legal Analysis.

[2] Carol R. Ember and Gonzalez Daniel, Marriage and Family https://hraf.yale.edu/ehc/assets/summaries/pdfs/marriage-and-family.pdf, Accessed 15^th September, 2025.

[3] Meaning of Marriage, https://www.britannica.com/topic/marriage,       Accessed 15^th September, 2025.

[4] The Journey to Marriage Equality in the United States, https://www.hrc.org/our-work/stories/the-journey-to-marriage-equality-in-the-united-states, Accessed 15^th September, 2025.

[5] Same-Sex Marriage (Prohibition) Act, 2013. On 7 January 2014, Nigerian President Jonathan Goodluck signed his assent to the Same-Sex Marriage (Prohibition) Act, 2013 (SSMPA).

[6] Same Sex Marriage (Prohibition) Act, https://archive.gazettes.africa/archive/ng/2014/ng-government-gazette-dated-2014-01-08-no-2.pdf, Accessed 15^th September, 2025.

[7] Benedette Bassey, Overview Of Statutory Marriage In Nigeria,  https://www.mondaq.com/nigeria/family-law/985124/overview-of-statutory-marriage-in-nigeria, Accessed 16^th September, 2025.

[8] Matrimonial Causes Act, Cap M7 LFN 2004.

[9] Marriage Act, Cap M6 LFN 2004.

[10] Marriages and their legal framework in Nigeria, https://nigeria.action4justice.org/legal_areas/womens-rights-focusing-on-marriage-rights/marriages-and-their-legal-framework-in-nigeria/, Accessed 16^th September, 2025.

[11] Sections 46 and 47 Matrimonial Causes Act

[12] section 370 of the Criminal Code Act.

[13] Mohammed v. Mohhamed (2024) LPELR-62831 (CA)

[14] Adekunle & Ors v. Ahmad (2025) LPELR-81978 (CA)

[15] By S. 244(1) CFRN, an appeal shall lie as of right to CA from decisions of Sharia Court of Appeal relating to questions of Islamic Personal Law. By S. 245(1) CFRN, an appeal shall lie as of right to CA from decisions of Customary Court of Appeal relating to any question of customary law. By S. 246(1) CFRN, an appeal shall lie as of right to CA from: a. Decisions of Code of Conduct Tribunal b. Decisions of National and State Houses of Assembly Election Tribunals on any question whether any person has been validly elected as a member of National Assembly or State House of Assembly. c. Decisions of Governorship Election Tribunals on any question whether any person has been validly elected into the office of a Governor or Deputy Governor.

[16] Wael B. Hallaq , An Introduction to Islamic Law, (Cambridge University Press The Edinburgh Building, Cambridge, UK, 2009)

[17] Safi, L. M. (1990). Islamic Law and Society. American Journal of Islam and Society, 7(2), 177–191. https://doi.org/10.35632/ajis.v7i2.2789.

[18] Lewis v. Bankole 1908 1NLR 81 at 100

[19] Alkamawa V. Bello (1998) 6 SC 92 at 102.

[20] Quran 4 (An-Nisai) verse 3.

[21] Vicky Abraham, Nigeria’s Interfaith Couples Face Marital Hurdles, https://religionunplugged.com/news/2023/9/11/manigerian-interfaith-christian-muslim-couples-face-challenges-throughout-their-marriage, Accessed 19^th  September, 2025.

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