A CRITICAL APPRAISAL OF LEGITIMACY AND LEGITIMATION UNDER NIGERIAN FAMILY LAWCHAPTER ONE
The family is the smallest unit in the social structure of every society. It is accepted that the family is the basis of every human community and the family may be regarded as the nucleus of society.
Family law deals with the law regulating the legal relationship between spouses (i.e. husband and wife) the legal relationship between a guardian or curator and the person who is subject to guardianship or curatorship. The term “family” does not lend itself to easy and precise definition. In one sense the family may be defined as including all persons with common ancestors. Under this wide connotation, the family may embrace a large body of persons related by blood to a common ancestor. The relationship may be traced through males, as in patrilineal societies or through females in matrimonial societies. The extended family, a concept which is prevalent in Africa may also be included in this wide definition of family. Green defines the extended family as: “…a group of closely related people, known by a common name and consisting usually of a man and his wives and children, his son’s wives and children and probably other near relations”.
The term “family” may still be given a much more restricted connotation. It may refer to a smaller group consisting of a household – the man, his wife, the children and probably the dependants who live with him. This is much closer to the concept of family in English law, which is restricted to the man, his wife and children. For the purpose of this study, the researcher will be treating family as a unit comprising the man, his wife or wives and the children.
It is universally accepted that marriage, being a union of man and woman, involves two persons of opposite sex. Consequently, sex constitutes an essential determination of a marriage relationship. In order to establish the existence of a valid marriage, it must be proved that the persons involved are man and woman.
Ordinarily, this seems a straight forward question; the issue has been complicated by the existence of hermaphrodites and pseudo – hermaphrodites and advances in medical science which have made sex change operations feasible. In the English case of Corbett V Corbett (1947) All ER 187, the petitioner and the respondents had gone through a marriage ceremony in September, 1963. The petitioner knew that the respondents had been registered at birth as a male and had in 1960 undergone an operation for the removal of the testes and created an artificial vagina, since the operation, the respondents had lived as a woman. In December 1963, the petitioner filed a petition for a declaration that the marriage was null and void because the respondent was a person of the male sex or alternatively for a decree of nullity on the ground of either in capacity or willful refusal to consummate. The court held that the respondent had remained at all times a biological male and that accordingly, the so – called marriage was void.
Unlike most European countries, two systems of marriages are recognised in Nigeria – the monogamous and polygamous systems. These two differ fundamentally in character and incident. It is important to keep this dualism in view in every consideration of the marriage laws in Nigeria. A monogamous marriage in Nigeria is the same as in England. It is a marriage which Lord Penzance described in Hyde V Hyde (1886) LRIP&D 130 as the voluntary union for life of one man one woman to the exclusion of all others. The laws which govern the celebration and incidents of monogamous marriage in Nigeria is the Matrimonial Causes Act of 1970.