The role of double-decker marriage during succession

In statutory marriage, the issue of succession is a serious matter, in fact, most of the upheavals and troubles that normally occur after the death of a husband/father always come from succession tussles within the family.

However, to avoid succession trouble, the Marriage Act in Section 36 provides for steps for inheritance. The relevant laws of England for Section 36 of the Marriage Act were contained in the Statutes of Distribution, 1670 and 1685 as modified by the Intestate Estates Act, 1890. It must be noted, however, that the rules for the distribution of an estate under Section 36 are those applicable to the distribution of personal property by the statutes. On the other hand, the applicable rule in double-decker marriage is somewhat different.

For instance, under Islamic law, the Igbos and the Yorubas have their mode of inheritance. The question then is what would be the applicable law in a situation where a man had children from a wife under customary law marriage and later had other children from another wife under double decker marriage?

To answer this question, one set of thought is to the effect that only the children born by a woman with whom the deceased contracted statutory marriage is legitimate, the other group says that to answer the question is not to ascertain whether a child is legitimate or not, but the focal point should be whether the deceased’s tribe or religious law permits him to consider a child born in or out of wedlock as legitimate so long as he or his paternal family acknowledges him as his child.

In Re Adadevoh and ors v. the Estate of Herbert Macaulay reported in (1951)13 W.A.C.A 304, Verity C.J declared that “section 36 of the Marriage Act could not be limited in its local application to wives of monogamous marriages in a polygamous society like Nigeria”. The inference from the court statement is to the effect that the Marriage Act should recognise polygamous wives in time of succession.

In Re Adedevoh’s case, the Court was faced with the question of whether the issues of a customary law marriage were, by the law of England, entitled to share in the intestate estate of their father who died intestate survived by these children of several customary law marriages and extra-marital relations.

The Court made it clear that where the deceased was a person subject to customary law, then the law to be applied in ascertaining the legitimacy of the children was customary law. The simple implication of this provision is that before a person enjoys the benefit of Section 36, it must show that the deceased intestate was subject to statutory law. Therefore, when a couple married under customary law and subsequently celebrates the same marriage in a church, that does not make them fall under the scope of Section 36, but the customary law on succession will apply in the distribution of his estate

However, the issue of whether a wife married under native law and customs qualifies as a legal wife and so has a right to inherit upon the demise of her husband, came up before the Court in the old case of Colman v. Shang, a case reported in 1981, in this case, the Court considered the issue that where the man who died intestate married the plaintiff’s mother under the marriage Ordinance (statutory marriage) and the Plaintiff was the only survivor among the five children of that marriage, while to the knowledge of the Plaintiff’s mother, the man cohabited with the defendant who produces 10 children for the man.

Upon the death of the statutory wife, the man then, married the defendant under native law and custom, upon the death of the man, the plaintiff brought the claim that he is the only one entitled to obtain a letter of administration which the defendant challenged, upon due consideration of issue the court held that the defendant was recognised as a wife and the fact that the English statute of general application provided for the grant of letters of administration to a wife did not preclude the defendant from being granted a right to administer as it should be construed to include the plural wives. In court, a joint administration was ordered in favour of both parties.

It is pertinent to note, however, that customary law adopts a liberal approach concerning a child born outside the customary law marriage. In such a situation, all that is needed to legitimize the child is the acknowledgement by the man.

In Savage v. Macfoy, a very old case reported in 1909 the Court thought: That acknowledgement under customary law removes the stain of bastard status from the offspring of the extramarital relationship and presupposes that legitimacy is not the exclusive privilege of children born in or legitimated by the marriage. Once acknowledged before death, such children are entitled to inherit the deceased’s estate.

Also, the Constitution of the Federal Republic of Nigeria makes it a crime to pronounce someone as an illegitimate child or bastard as the case may be. Again, a paternity test will also aid in determining the legitimacy of a child born outside wedlock see the case of General Gowon v. Edith Ike – Okonkwo, (2003) LPELR 1336,(SC).

Recently a Sharia Court of Appeal sitting in Ilorin has ruled that when it comes to the administration of the estate of a deceased who had a subsisting marriage under the Act, the Administration of Estate Law of Kwara State would be applied and not the Islamic Personal law. In the case of Mohammed & Anor v. Mohammed & 5 Ors., APPEAL NO: KWS/SCA/CV/AP/IL/14/2022, the Estate of the deceased, late Major Muhammed Adeniyi, was the subject of litigation. The respondents had filed a case before the Upper Area Court 1, Ilorin, in suit number UAC1/CVF/968/2020 challenging the 1st appellant that the death benefits she received from the Military Pension Board as a next of kin of her late father are to be distributed by Islamic law and that the 2nd and 3rd wives Islamically married by the deceased are entitled in the distribution of the deceased estates. The 1st wife, upon being aware of the suit, joined and challenged the jurisdiction of the Upper Area Court to entertain the case by her marriage to the deceased under the Marriage Act and that the suit was an abuse of court process by a pending claim at the High Court, Ilorin in suit number KWS/2/2020 between the same parties. The Upper Area judge dismissed the objection on the ground that since the deceased and the 2nd appellant were not living together at the time of his death, there was an implied separation and that the suit at the Upper Area Court was not an abuse of court process. Upon being dissatisfied with the ruling, the appellants appealed to the Kwara State Sharia Court of Appeal for the court to determine whether it is the administration of estate law of Kwara State or Islamic law would apply to the estate of Major Mohammed Adeniyi, who married under the Act or the Islamic law.

The appellants submitted that since the deceased married under the Marriage Act and died without making a Will, the Administration of Estate Law of Kwara State should govern his estate, not Islamic law. He further argued that the subsequent marriages are void ab initio. The respondent submitted that the conduct of the deceased by his subsequent marriages according to Islamic law should govern the distribution of the deceased estate and not the administration of estate law. The Kwara State Sharia Court of Appeal, Ilorin, in allowing the appeal, considered the decision of the Supreme Court in Obusez v. Obusez (2007) All FWLR (PT.374) 227 @ 252, Nebula v Nebuwa (2018) LPELR-45097 (CA) and held that: “The estate of late Major Muhammed Adeniyi would ordinarily have been governed by Islamic law if he had not by his own choice contracted a valid and subsisting marriage under the Act with the 2nd appellant. Dissolution of a marriage under the Act cannot be presumed, speculated, or conjectured as erroneously done by the trial court. The Court also cited S.A.Giwa, the learned author of the book, the status of the registry and Islamic marriage and further held that.

“In law, the deceased, by opting for the registry marriage, has changed his ‘factory setting’ religion of Islam and the only way he could legally unbundle himself and return to the ‘factory setting’ from the status he willingly put himself, is by legally repudiating the statutory marital relationship he had with the 2nd appellant, through a legal divorce.”

Referring to the last edition on the justification if any on double-decker marriage, it is now crystal clear that couple to a marriage should be certain on the type of marriage to choose, either marriage under the statute or marriage under native law and custom, in other a avoid problems that come with succession because there is no justification in combining the two marriage by the same couple.

Finally, it is important to know that where there are multiple wives in a marriage, the man/husband should save his family from succession trouble by contacting a lawyer to draft his WILL while he is still alive.


Olaedo Osuagwu Esq is a lawyer and can be reached at @olaedochambers@gmail.com (08136302241)




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