(ii) Consent of the Parents
Parental consent is necessary and in some cases mandatory r the celebration of valid customary-law marriage. Support is lent to this principle the fact that to some extent customary-law marriage is a transaction between o families. The requisite consent is that of the father, or guardian who is in zo parentis to the prospective spouse.
For a girl, parental consent is mandatory under customary law even where she has attained majority. The reasons are not difficult to find. Without the consent of her father, for instance, the bride-price cannot be properly paid. Moreover, the formal giving away of the bride may not take place. These are two constituent elements of a valid customary-law marriage. On the other hand, an adult male may contract a valid marriage without the consent of his parents.
The declarations of customary law of marriage in Biu, Idoma, Tiv and Borgu provide for parental consent on the first marriage of a girl. The father or guardian may refuse such consent at his discretion, without being required to give reasons. In the case of a second or subsequent marriage, the father or guardian must be consulted, but his refusal of consent does not constitute a bar to the marriage. Refusal in the hitter case may be for specific reasons; for instance, the suitor may have refused to pay the bride-price demanded, or may have committed adultery with a wife of some relations of the prospective bride.
Exceptions to the requirement of parental consent exist in those areas of the Lagos, Ogun, Oyo, Ondo and Bendel States of Nigeria where the Marriage, Divorce and Custody of Children Adoptive By-Laws 1958 are in force. In these areas, it is possible to do without the consent of parents who are adamant. Section 5 of the By-Laws provides:
When any parent or guardian of a bride refuses his or her consent to a marriage or refuses to accept his or her own share of the dowry, the bride, if she is eighteen years of age or above, and the bridegroom jointfy may institute legal proceedings in a competent court against the parent or guardian to show cause why he or she should refuse consent or to accept his or her share of the dowry; and if the court is of the opinion that no sufficient cause has been shown, it shall order that the marriage may proceed without the consent of such parent.
This provision assumes that either a man or woman acting as the parent or guardian of a child may give the necessary consent. This is in accordance with Yoruba customary law, under which the head of a family may be male or female. Second, although the section dispenses with parental consent in certain circumstances, there is no clear indication as to how in practice the procedures for marriage could continue if the parent refuses to relent. For instance, in such a situation the question as to who should accept the bride-price and formally hand the girl over to the husband’s family is left unanswered by the section. Construed ordinarily, the provision involves either the forfeiture of the bride-price or its payment into court. Possibly a way out of these uncertainties is to include a new provision which will expressly authorize the customary court to step into the shoes of the recalcitrant parent for the purposes of the particular marriage.