3. A valid marriage, and a void one

Capacity has two parts that students mix up. One is whether these two people can marry each other at all. The other is whether a parent or a judge must consent before the minister or the registrar may proceed.

Age, as the 1965 amendments left it, depends on personal law. A person whose personal law is customary law, and who is not a widow or a widower, must be eighteen, or must have the consent of a parent, or if the parents are dead or unable to consent, of a guardian, or of a judge. Everyone else must be twenty-one, or have that consent. Section 7(2) of the Christian Marriage Act says no marriage may be celebrated without it. The same condition is attached to the registrar's certificate. That is a condition of the ceremony being allowed to go ahead. It is not the same thing as the parties' own consent to be married.

The parties' consent is what a student expects to be essential, because marriage is a contract. The Acts do not say that. Section 10 of the Christian Marriage Act and section 15 of the Civil Marriage Act end with the same words: save as aforesaid, every marriage celebrated under the Act is valid until it is lawfully dissolved. Want of consent, duress, fear and mistake are not on the list that goes before those words. In Nigeria and Ghana the marriage statutes leave the door open for the common-law grounds. These two sections shut it. The result is hard to defend. A court is not free to ignore the words. What remains, and what section 3 of the Matrimonial Causes Act expressly keeps, is that some of those defects can still make the marriage voidable. They do not make it void.

Since 2007 the age rule has been overtaken, and since 2024 it has been closed. Section 34 of the Child Rights Act 2007, as replaced by the Prohibition of Child Marriage Act 2024, says the minimum age of marriage of whatever kind is eighteen. The 2024 Act, No. 5 of 2024, makes it an offence to contract a marriage with a child. A child is a person under eighteen. A child marriage contracted after the Act came into force is void. A marriage contracted before that date, while one party was a child, may be annulled on the petition of that party. Parental consent is not an exception. The old paragraphs that allowed a person under eighteen to marry with a parent's consent, or a magistrate's consent, cannot be used to marry a child.

Status is the other capacity. A person who is already married, whether under statute or under customary law, cannot contract a Christian or civil marriage with someone else. Section 1 of the 1965 Christian Marriage amendment requires a declaration, before a licence, that where the personal law of either party is customary law, neither is a party to a subsisting marriage by customary law or otherwise. Baindail is the same idea from the conflict of laws. A potentially polygamous marriage already in existence annuls the later monogamous ceremony.

The prohibited degrees are those of English law, of consanguinity and of affinity. Consanguinity is blood. Affinity is the relationship created by marriage, between one spouse and the relatives of the other. A marriage within those degrees, under either Act, is void. The sections do not require that the parties knew of the relationship.

The other void grounds are formal, and they are not the English list. A church marriage without due banns, and without a licence, is void. A civil marriage without the registrar's certificate, or without the President's licence, is void. Knowledge does not matter. Section 10 does not say "knowingly and wilfully". Greaves v Greaves decided an English section that did use those words, and held the marriage good because only one party knew that a licence was required. That decision has been cited in Sierra Leone as if it controlled section 10. It does not. A marriage here without the banns or the licence is void even if neither party knew of the defect.

A false name is the one formal defect that does depend on knowledge. Sections 10(c) and 15(c) avoid the marriage only if it is celebrated under a false name with the knowledge of both parties. If only one knew, the marriage stands, and the one who knew commits an offence. A name by which the person is generally known is a true name for this purpose. A wilful lie about status, as distinct from the name, does not by itself avoid the marriage.

A marriage not celebrated before two witnesses is void. A civil marriage not celebrated within three months of the notice is void, which is section 8 of the Civil Marriage Act. A Christian marriage celebrated after three months from the banns or the licence is still valid. The minister commits an offence under the Act. He does not unmarry the couple. Celebration before a person who cannot celebrate, and failure to register afterwards, are not on the list. Want of a parent's consent is not on it either. That consent is a condition of being allowed to proceed, under the age rules as the 1965 amendments left them. Proceeding without it may be an offence. It is not, by itself, a void marriage. The 2024 Act is what makes the child marriage void, and it does so because the spouse is a child, not because a parent failed to sign.

Lord Greene's distinction in De Reneville is the one to use for the difference between the two kinds of defect. A void marriage is one that every court will treat as never having taken place. No decree is necessary, though a decree is often sought so that the status is on the record. Either party, and a person with a sufficient interest, may rely on the voidness. A voidable marriage is a valid marriage until the court annuls it. Only a party can petition, and only during the lifetime of both. Section 3 of the Matrimonial Causes Act states the statutory voidable grounds, and it states them as additional to any other ground on which a marriage is by law void or voidable. The statutory grounds are wilful refusal to consummate, venereal disease in a communicable form at the time of the marriage, and pregnancy by a person other than the petitioner at the time of the marriage. The disease and the pregnancy can be used only if the petitioner was ignorant of the facts at the marriage, petitions within a year, and has not had intercourse with the other spouse after discovering the ground. The common-law voidable grounds stay open because of the words "in addition". Incapacity to consummate, existing at the marriage and incurable, is the ground the English cases supply. Fraud, misrepresentation, duress, fear and non-age are the further grounds on which a contract of this kind can be avoided. Non-age, where the person is under eighteen, is now a ground of voidness under the 2024 Act, not a ground of voidability.

Baxter v Baxter holds that consummation is ordinary and complete sexual intercourse. It does not require that a child be possible. The use of a contraceptive does not prevent consummation. Wilful refusal is a settled decision, without just excuse, not to consummate. Illness can be a just excuse. Mere malingering cannot. A decree of nullity of a voidable marriage is, for many purposes, retrospective. Divorce is not. Divorce ends a marriage that existed. Nullity of a void marriage declares that it did not.