Every year, thousands of Nigerian couples separate and discover, often painfully and too late, that the type of marriage they contracted determines almost everything, it ranges from which court they go, to what they must prove, whether they get a share of property, who keeps the children, and even whether they can remarry.

Two people can have court cases, both going through a divorce, and have completely different rights simply because one had a church wedding registered under the Marriage Act, while the other had a traditional ceremony governed by customary law.

This is not a technicality! It is the law and understanding it could protect your future. In this blog, we will share some differences between statutory marriage and customary marriages in divorce.

What is the difference between Statutory marriage and court marriage?

Statutory Marriage: A statutory marriage also called “marriage under the Act” is a marriage conducted in compliance with Nigeria’s Marriage Act (Cap M6, Laws of the Federation of Nigeria 2004). It is the type of marriage celebrated at a government Marriage Registry, or at a licensed place of worship (such as a church) that issues an official marriage certificate.

The key characteristics of a statutory marriage are:

• It is strictly monogamous: one man, one woman, and no other spouse, at any time unless the marriage is dissolved and the decree made absolute.
• It requires a marriage certificate as proof.
• It is governed by the Matrimonial Causes Act (MCA) when it breaks down irretrievably.
• It can only be dissolved by a High Court of the state not Federal High Court.
• A party who is already married with one person under customary law cannot validly contract a statutory marriage with another person without first dissolving the customary marriage. Doing so amounts to offence of bigamy.

Note: A church wedding alone does not automatically make your marriage statutory. The wedding must have taken place in a licensed place of worship, or the couple must have gone through the Marriage Registry process. If your church is not a licensed place of worship under the Marriage Act, your church wedding may only be a customary marriage dressed in white!

Customary Marriage: A customary marriage is one conducted in accordance with the native law and custom of the parties’ ethnic community.

The key characteristics are:

• It is potentially polygamous; a man may marry more than one wife under customary law.
• It is governed by the customs of the community, not a single national law.
• It does not require a marriage certificate to be valid.
• Disputes are generally handled by Customary Courts or Area Courts.
• There is no uniform customary law across Nigeria, what applies in Lagos may differ significantly from what applies in Enugu or Kano.

In divorce which is better?

1. Grounds for Divorce

Statutory Marriage

To obtain a divorce under a statutory marriage, you must go to the State High Court and prove that the marriage has broken down irretrievably. This is the only ground for divorce under Section 15 of the Matrimonial Causes Act.

However, “irretrievable breakdown” is not just a feeling or a complaint. The law requires you to prove at least one of eight specific facts to establish it:

1. Adultery by the other spouse
2. Unreasonable behavior (cruelty)
3. Desertion for at least one year
4. Separation for at least two years (with consent to divorce)
5. Separation for at least three years (without consent)
6. Failure to comply with a court order for restitution of conjugal rights for over one year
7. Presumption of death (spouse missing for so long the court may presume death)
8. Willful and persistent refusal to consummate the marriage

Even after you prove your grounds, the court can still refuse to grant a divorce if your spouse raises a valid legal defence such as proof that you condoned (forgave) the conduct you are now relying on, or that you are guilty of adultery.

Customary Marriage

Customary divorce is significantly more flexible and in many ways, far simpler. There is no fixed list of grounds you must prove. Under most customary law systems, the marriage can be dissolved if either party has simply lost interest in continuing it. Mutual consent is sufficient.

­­Read: Child Custody in Rivers State Nigeria

In a customary court, the parties and often their families state their positions, and the court facilitates dissolution. Some customary systems allow dissolution entirely without going to court at all. The families of both parties meet, agree to dissolve the marriage, and the bride price question is settled. The marriage is considered ended.

2. Property Rights: Who Gets What After Divorce?

This is the area where the gap between the two systems is most stark and most consequential.

Statutory Marriage

Under Section 72 of the Matrimonial Causes Act, a court handling a statutory divorce has the power to make property settlement orders, meaning it can order the division of matrimonial assets between the parties in a manner that is just and equitable.

The Nigerian courts have consistently interpreted this to mean:

• Marriage alone does not entitle a spouse to an automatic 50-50 split of assets.
• Courts look at the contributions of each spouse both financial and non-financial.
• Non-financial contributions such as homemaking, childcare, and domestic support are recognized as valid contributions to matrimonial property.

In practical terms, a wife who contributed financially to the purchase of property, or who can demonstrate years of domestic contribution that enabled her husband to build wealth, has a real legal claim to a share of that property in a statutory divorce.

Customary Marriage

Under most customary law systems, the picture is far less favorable particularly for women. Traditionally, customary law treated property accumulated during marriage as belonging to the husband. A wife married under customary law has historically had no automatic right to matrimonial property upon divorce. Upon dissolution, she could be expected to leave the matrimonial home with little more than her personal belongings.

Contemporary courts have begun to push back against the most extreme applications of this approach. Some states and some judicial decisions have recognized women’s property rights even in customary marriage contexts. However, there is no uniform national standard, and outcomes vary dramatically depending on the state, the community, and the specific customary court hearing the case. Such custom is presumed to be against natural justice, equity and good conscience!

If you are a woman concerned about protecting your financial position in the event of divorce, a statutory marriage offers significantly stronger legal protection over property than a customary marriage.

3. Maintenance and Spousal Support

Statutory Marriage

The Matrimonial Causes Act empowers the court to order maintenance payments, regular financial support to either spouse after a divorce. In practice, this is most commonly ordered in favour of wives who are financially dependent or who have sacrificed career opportunities to raise the family. Courts consider the financial capacity of the paying spouse, the reasonable needs of the receiving spouse, and the standard of living during the marriage.

Customary Marriage

There is no equivalent statutory framework for maintenance in customary divorce. Some communities provide informal support arrangements, but these are not legally enforceable in the same way. A wife leaving a customary marriage generally has no guaranteed right to ongoing financial support from her former husband.

4. Child Custody

Statutory Marriage

In statutory divorce proceedings, the court is guided by the best interests of the child as the paramount consideration a principle enshrined in the Child’s Rights Act 2003 and consistently applied by Nigerian High Courts. The court looks at the age of the children, their emotional and educational needs, each parent’s capacity to care for them, and the existing bond between parent and child. There is no presumption that either parent automatically gets custody.

Customary Marriage

Under most Nigerian customary law systems, the position is traditionally quite different. Customary law has historically presumed that children belong to the father’s family not the mother. Upon dissolution of a customary marriage, custody of children is routinely awarded to the father or his family, regardless of the children’s ages or the mother’s fitness as a parent.

However, this is an area where courts have increasingly intervened. Customary courts are now directed to consider the welfare of the child as a paramount factor, and many state laws echo this standard. In practice, younger children especially nursing infants may still be left with their mothers for a period, even in customary divorce.

Note: When a couple marries first under customary law and later contracts a statutory marriage, the statutory marriage becomes the controlling regime for divorce and property rights. You cannot use the Customary Court to dissolve what is essentially a statutory marriage. The High Court has exclusive jurisdiction. If you have had both a traditional ceremony and a church/registry wedding, you are almost certainly in a statutory marriage and the full protections of the Matrimonial Causes Act apply to you!

If the statutory marriage is validly contracted, the husband cannot marry additional wives under customary law without committing bigamy.

In conclusion, the type of marriage you contract is not just a cultural or religious choice, it is a legal decision with profound consequences for the rest of your life. In a country like Nigeria where family law operates across two fundamentally different frameworks, knowledge of which system applies to you is not optional. It is essential.

Do not make any moves legal or otherwise without first establishing which type of marriage you are in. The court you approach, the documents you need, the rights you can assert, and the outcomes you can expect all depend on this single foundational question.

Marriage is a covenant. But in Nigeria, it is also a legal status. And the law, as always, will apply whether you understand it or not because ignorance of the law is not an excuse!

For further enquires:

Email: info@verazadvocates.com.ng

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