Most countries have specific laws which set out what requirements must be satisfied in order for a couple to enter into a legally valid marriage. These can include rules relating to where the marriage ceremony takes place, who conducts the marriage ceremony, and other formalities.
There are usually three types of marriages:
Statutory marriages: A marriage that is often monogamous and is carried out according to the national law, by a state official who performs the ceremony and is registered before a state body, with certification that all requirements required by national law are met.
National laws may allow religious ceremonies to be performed together with a statutory marriage, but often require that the marriage be still celebrated and registered before a state official and meet with requirements stated by law.
A valid statutory marriage will have different steps and requirements in each country, but generally requires:
- Full consent and capacity of both parties.
- Giving notice to the registrar of the marriage within a certain time limit and providing information to identify the parties.
- Some countries require you to have witnesses.
- Witnesses and the parties to declare that there are no reasons why they could not get married.
- Expressing to the registrar the desire to get married and provide personal information again. Some countries require you to get a certificate from the Registrar which will allows the parties to get married.
- The ceremony to take place before a registrar and with full consent of the parties and witnesses. A second religious ceremony can take place and in many countries this requires the registration of the marriage in a civil registry.
Religious marriages: in many countries, religious ceremonies are allowed as long as the marriage complies with an overarching national law on marriage and is then registered as a statutory marriage. However, there are some countries where religious marriages have different rules, registration, and courts than statutory marriages, which are guided by religious rules and principles.
NIGERIA The Nigerian constitution in sections 260 and 262 states that there is a Sharia Court of Appeal for the Federal Capital Territory to resolve matters related to Islamic personal law. There is then the option to appeal to an overarching Court of Appeal.
Each religion will have particular rules as to the requirements of marriage and other important rules that apply to women.
Customary marriages: These marriages will vary in nature in each particular country, but they share that they are carried out according to the customs and usages traditionally observed in a particular community. The requirements vary and it may be that they are not always monogamous marriages.
A valid customary marriage will have different steps and requirements in each country and will often not be regulated. Those countries that do regulate it often include requirements such as:
- Capacity and consent of both parties, often with exceptions regarding age.
- Consent of the father of the bride or sometimes other family members to the marriage.
- Payment to the head of the household of the bride, either in money or goods. For example, in South Africa, this is called Lobolo.
- The handing over of the bride.
If you want to take legal action, it is imperative that you seek legal advice from a lawyer in your country who is an expert in the specific religious or customary rules that apply to you and seek support from organisations that are aware and can offer advice about how to protect yourself from the way your community may react to women taking legal action for their rights.
Some countries recognise customary and religious marriages and others do not recognise them, which may leave women in customary and religious marriages lacking protection.
It is important that your customary or religious marriage is recognised so you can have proof of marriage. Proof of marriage is important because it will allow you to demand that your rights during and after marriage are enforced.
In countries where customary and religious marriage is common, there may be a law which provides that such marriages are legally valid.
Example: In South Africa, the Recognition of Customary Marriages Act 1998 provides that marriages performed according to traditional customary law can be recognised as legally valid if certain conditions are satisfied. People who want their marriage recognised must complete a form to register the marriage with enough information to prove existence of the marriage This is often within a time limit, in this case 3 months. A certificate is issued.
Beyond the time limit, marriages can also continue to be registered and the registering officer must be satisfied that a marriage exists or existed.
Once recognised, it is likely that women and men in customary marriages should be entitled to equal legal protection as other marriages. The detail of this would need to be discussed with a legal professional in your country.
Civil Remedies provided for in the law:
If an officer refuses to recognise the marriage, some countries allow you to go to court to ask for either the declaration of its existence and registration or cancellation or rectification.
This is a case that you would present to a Civil Court as it is a civil claim. Civil claims solve disputes between private parties, such as two individuals, a couple, two companies or an individual and a company. The purpose of civil claims is for a judge to give you relief or a remedy, that is, a solution to your individual problem with the other party. This can be:
-compensation or money in the case that you suffered harm
-it can also be an order from the judge to do or not do something, like this case This will often be described in the text of the law that regulates the recognition of marriages, a family law code or a civil code.
-it can also be an order from the judge allowing you to benefit from certain rights. For example, to divide a property in your favour, administer an estate or decide that you are entitled to certain rights.
Step 1: Think about why the decision by the registering officer was wrong. Was there missing or wrong evidence? Has there been a mistake? Has the registering officer been unreasonable? Start gathering evidence that supports that there is a marriage, this includes witness statements, photographs, certification, evidence of a common life together, etc.
Step 2: Look at where the recognition is regulated – for example, in a civil code, or specific legislation such as a recognition of marriage act.
Step 3: Seek legal advice on the viability of your case and to take your case to court.
Claim: civil claim in a civil court, like the High Court
By whom: the affected party (wife or husband or sometimes even relatives affected by the marriage)
Against: the involved party in the marriage
Asking for: an order to declare the existence and registration of the marriage, its cancellation or rectification
Proceedings will often involve:
This route is a good option for a case in which the focus is on solving the recognition of one individual marriage, but note that it does not address the systemic issue in the recognition of some marriages and does not apply for future situations.
For more information on civil proceedings please see our Going to Court Guide.
If a marriage is not legally recognised, this may impede you from benefiting from any protections that are provided for married women in national law – for example, those relating to the equal status of the husband and wife within a marriage or the rights of each party in the event of a divorce.
Women in customary marriages may therefore continue to suffer discrimination even where a country’s formal laws on marriage provide for equal rights.
It may still be possible for you to benefit from the legal protections of marriage as if the marriage were legally valid by using other laws to secure the same rights.
Some countries have laws which give some rights to couples who have cohabited together for a certain time period, regardless of whether or not they are married. Not all countries allow this and some only give you some rights, but not all. You will need legal advice in your country to access more information.
In Jamaica, the 2003 Family Property (Rights of Spouses) Act, recognizes the rights of women living in a cohabitation arrangement with a man for at least five years as those of a “spouse”.
Similarly, Mozambique’s Family Law 10/2004 recognizes de facto unions if they are monogamous relationships where there is cohabitation for at least a year. These de facto unions allow parties to make claims to shared property once the union ends. These unions do not have benefit to all rights that married couples do, but give you some protection.
Source: OHCHR and UN Women, Realizing Women’s Rights to Land and Other Productive Resources, pp. 34, 36, 39
Step 1: Think about which rights you want to claim and whether there is a law in your country that gives rights to cohabitations or other unions. This may be an individual law or a civil or family law code, or case law in common law countries which refers to common law, de facto or cohabitation unions.
Step 2: Start gathering evidence that supports that there is a long-lasting union. This includes witness statements, photographs, shares property, common home, evidence of a common life together, etc. This is essential as you have the burden to prove this.
Step 3: Seek legal advice on the viability of your case and to take your case to court.
This is a case that you would present to a Civil Court as it is a civil claim. Civil claims solve disputes between private parties, such as two individuals, a couple, two companies or an individual and a company. The purpose of civil claims is for a judge to give you relief or a remedy, that is, a solution to your individual problem with the other party. This can be:
-compensation or money in the case that you suffered harm
-it can also be an order from the judge to do or not do something
-it can also be an order from the judge allowing you to benefit from certain rights. For example, to divide a property in your favour, administer an estate or decide that you are entitled to certain rights, like in this case.
Proceedings will often involve:
The process would involve exerting your rights (property, family home, maintenance, etc) before a civil court or a family court.
Claim: Civil claim in a civil court, like the High Court or a family court
By whom: the affected party in the relationship
Against: the involved party in the relationship or sometimes even relatives affected by this. For example, in property issues, a cohabitant may bring a case against the parents of the deceased.
Asking to: benefit from rights based on cohabitation in your particular case, for example to benefit from property rights, to have a say over your spouse’s health in accidents, etc.
Jamaica, THELMA MAY WHILBY-CUNNINGHAM CLAIMANT v. LEROY AUGUSTUS CUNNNGHAM
Both parties were together and cohabited for approximately thirty years and had two children. After roughly thirty years, the parties married, but after a year, separated.
Thelma May’s lawyers found a law that recognised her rights as a cohabitant, the Property (Rights of Spouses) Act, 2004 which gave cohabitant the status of spouses. Thelma May decided that she had property rights that had emerged over those 30 years, and made a civil claim for 50% share in the dwelling-house. She provided evidence and the judge decided that she was awarded 50% share in the dwelling house.
It may be that your marriage or union is not awarded any protection at all in your country, or that there is legislation or policy which affects your chances to have your marriage recognised. This kind of systemic issue that is best addressed through a constitutional or public law challenge.
A public law challenge allows you to contest a law, policy or a decision that denies legal protections to women, on the basis that these laws, policies or acts go against your fundamental or constitutional rights.
How? The process for such a challenge varies between countries – it may be, among other things, called a “constitutional petition”, or “amparo proceedings”.
For this to work, there must be a right on your constitution or other important law which lays out your fundamental rights that protects you. Most constitutions include a general provision of equality before the law or non-discrimination. They also focus on other rights, such as right to a fair trial, equality within marriage, social and economic rights.
Claim: Constitutional claim in a constitutional court. Some countries allow you to go to a civil court.
By whom: the wife (can be supported by civil society organisations) and some countries allow civil societies to represent the public interest and take a case alone.
Against: an act by a public authority or in some countries a private institution too, that gives the wife less rights than the husband. In some countries like in Peru (article 200 of the Constitution), laws are challenged through “unconstitutionality actions”.
Asking for: declare the act or law unconstitutional and have it not applied in your case and in some cases it would not apply to all similar cases.
They will require:
-Getting legal advice on the likelihood of an amparo proceeding for your specific case.
-Initiating legal proceedings
-Finding a person who has had their fundamental rights affected: This would be the wife which is affected by the denial of recognition of her rights.
-Establishing which of your fundamental rights were affected: the right to equality and/or non-discrimination contained in most constitutions or other national laws can be effective but it could also be that other rights protected by the constitution are affected, such as your property rights, right to work, or others.
If successful, the constitutional courts may provide for an act, law, or policy to be declared unconstitutional. This often means that the act, law, policy cannot be implemented in an individual case (concrete application), but it may in some countries also have the benefit of not being applicable in ANY case (general application).
A constitutional challenge is often a good route to challenge a law or policy which itself affects more than one individual, as it can be replicated by others or may change a law and policy for everyone.
South Africa. Hassam v Jacobs NO and Others 2009 (5) SA 572 (CC)
Fatima Hassam was a widow in a polygamous Muslim marriage. She had problems benefiting from her inheritance rights because polygamous marriages were excluded as the Intestate Succession Act 81 of 1987 gave the benefit to the “spouse” not the “spouses”.
She first made a civil claim asking the High Court to recognise her rights as a surviving spouse, arguing that the section of the Interstate Succession Act was unconstitutional, as inheritance rights should protect surviving spouses regardless of whether the marriage is monogamous or polygamous. The High Court agreed that the exclusion of widows of polygynous Muslim marriages from the benefits of the Act would be unfairly discriminatory.
The Constitutional Court confirmed there was an unfair discrimination. Section 172(1) of the South African Constitution allows the court to declare that any law that is inconsistent with the Constitution is invalid and also make any order that is just and equitable. The Constitutional Court declared that section 1 of the Intestate Succession Act 81 of 1987 was inconsistent with the Constitution based on religion, marital status, and gender, violating section 9 of the Constitution, which referred to equality before the law. It ordered that that section must be read as though the words “or spouses” appear after the word “spouse”. Thanks to this, Fatima Hassan could benefit from her inheritance rights as a surviving spouse.
It may be in some countries legally recognise customary marriages, but do not give them the same protection of equal rights between spouses, which affect the rights of women.
If a marriage engages practices which constitute child or forced marriage, there are criminal law mechanisms and civil law mechanisms which are relevant. For more information, see our section on child or forced marriage.
If a practice during marriage affects your right to equality or other rights, see more information about challenges to that in our “equality in marriage” section which focus on specific ways to challenge control from your husband in marriage.
Provisions in international human rights treaties and conventions also protect the right to equal treatment of women within marriage, which may be relevant to women married under different types of marriage.
What are my rights in international law, examples:
Article 23(4) of the ICCPR provides that states shall ensure equality of rights and responsibilities of spouses in relation to marriage and its dissolution.
Article 2(f) of CEDAW provides that states must take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs, and practices which constitute discrimination against women. This means that states should act to end discriminatory practices even where they are not part of formal national law.
Article 2(2) of the Protocol to the African Charter on the Rights of Women in Africa provides that States commit themselves to modify social and cultural patterns to eliminate harmful practices based on the idea of the inferiority or the superiority of either of the sexes.
Article 6 states that States Parties are to ensure equal rights in marriage, that the law must guarantee the free and full consent of parties and that the minimum age of marriage to be eighteen years. Monogamy is encouraged, as is recording marriages in writing. It also states that during marriage a woman can buy her own property and administer it freely.
TIP 1: You can find a detailed table of international law on marriage here
TIP 2: You can click on this link and look for your country on the list. If your country is party to a treaty it must comply with the rights and obligations included in them. Your country may have applied reservations (limitations to the application of the treaty) when they became party to a treaty which you can also read.
TIP 3: You can search for cases in your country or in your regional system and see which rights have been most effective to uphold equal marriage rights in the past.
These provisions are especially useful for organisations and the community to hold their governments progressively to account particularly towards systemic change.
For more information on how to take your case to an international or regional body, please see the section on this guide “International Mechanisms to protect your rights”.