EFFECT OF COURT MARRIAGE ON ESTATE DEVOLUTION/SUCCESSION

Marriage under the Act, what we call Court Marriage today, upholds the system that marriage is strictly between the duo involved (husband and wife) to the exclusion of any other. This form of marriage, unlike its customary marriage counterpart, leans heavily on the protection of marriage contracted under it, even up until/after the death of one of the spouses. How a deceased married man or woman's estate will be administered/distributed where he/she dies without leaving a valid Will depends wholly on the nature of marriage he/she contracted while alive.

Yes. When a person who was married with children dies intestate (without a will) then the following questions arise for determination- Who are the beneficiaries entitled to the deceased’s property? Should the estate devolve according to Customary Law or the received English Law? What happens to the deceased children born outside wedlock, are they entitled to partake in the deceased estate? Resolution of these questions sometimes causes the members of the family to engage in bitter dispute which has resulted into litigations/lawsuits.  

 One of such lawsuits is the case of Salubi v Nwariaku (2003) 7 NWLR (Pt. 819) 426, where the Supreme Court held that the applicable law to the succession and distribution of the estate of the deceased who died intestate without a Will but married under the Marriage Act was the Administration of Estates Law and not the Marriage Act. The Court further held that both laws have similar provisions and apply the English law on the subject.

Section 49 of the Administration of Estates Law deals with succession to real and personal estate on intestacy. Section 49(5) states that, “Where any person who is subject to Customary law contracts a marriage in accordance with the provisions of the Marriage Act and such person dies intestate after the commencement of this Law leaving a widow or husband or any issue of such marriage, any property of which the said intestate might have disposed by Will shall be distributed in accordance with the provisions of this Law, any customary law to the contrary notwithstanding.” Section 36(1) of the Marriage Act states that, “where any person who is subject to customary law contracts a marriage in accordance with the provisions of this Act and such person dies intestate leaving a widow or husband or any children of the marriage, the real and personal property of such person which might have been disposed off by a Will, shall be distributed in accordance with the provisions of the Laws of England relating to succession of estates, notwithstanding any contrary customary law.” The difference between the provisions of both laws is that, while section 36(1) of the Marriage Act incorporates by reference the English law into our law of intestate succession, section 49(1) of the Administration of Estate Law directly enacts the provisions of the English law on the subject into Nigerian law.

The Supreme Court also decided on the issue of the estate succession of children born out of wedlock. The Supreme Court held that such children were legal beneficiaries and therefore entitled to share in the estate of their father because the provisions of section 42(2) of the 1999 Constitution prohibits any form of discrimination by reason of the circumstances of birth.

 Another of such cases is Obusez v Obusez (2007) 10 NWLR (pt. 1043) 430 S.C, wherein the Supreme Court followed its decision in Salubi v Nwariaku and held (per Onnoghen JSC) as follows: “It is not disputed that the deceased and the 1st respondent were married under the Marriage Act in 1972 but that prior to that marriage both parties were subject to customary law with the deceased being particularly subject to Agbor Customary Law. It follows, therefore, that by virtue of the said marriage and upon the death of the deceased intestate, the provisions of the Administration of Estate Law of Lagos State becomes applicable particularly as the deceased and 1st respondent together with the children of the marriage resided in Lagos State at the time of the death of the deceased intestate.”

 From the above, we can authoritatively drive home the point that those entitled to the estate of a deceased person are determined by the law under which the deceased contracted his marriage at the time of his death. If the deceased was married under the customary law, the customary law of his native land on succession/devolution applies. If the deceased, on the other hand, was married under the Marriage Act, the Administration of Estate Law applies. However, the best bet to circumvent the headaches that come with  dying intestate is for all Men to write their Wills while still breathing especially persons who own substantial properties as well as those with children out of wedlock. Writing a Will is the only solution to posthumous family feuds.