Woman-to-Woman Marriage in the South-east of Nigeria Versus the Prohibitory Regime of Same-sex Marriage (Prohibition) Act 2013

Marriage is an institution which is recognised and respected all over the world.¹ It is also founded on and governed by social, cultural, and religious norms of society.² However, one of the major challenges currently facing the institution of marriage in most countries centres on the restriction of recognition to that which is contracted by persons of the same sex. In Nigeria, two types of marriage exist: monogamous marriage governed by the Marriage Act, and customary marriage which includes Islamic marriage and is polygamous in nature.³ Monogamous marriage is defined as the voluntary union of one man and one woman to the exclusion of all others, until divorce or death.⁴ In Nigeria, the Marriage Act did not specifically define marriage but envisages it as a legal union entered into between persons of the opposite sex in accordance with the law.⁵ However, the Same-Sex Marriage (Prohibition) Act 2013⁶ defines marriage as a legal union entered into between persons of the opposite sex in accordance with the Marriage Act, Islamic law and customary law.⁷ Customary marriage on the other hand is the union for life of one man and one or several women⁸ or between two women, where one of the women is the female husband and the other the female wife. The latter kind of marriage, prevalent in the South East of Nigeria, made up of the Igbo ethnic group, can arise out of the need to preserve the family structure or provide credible social services for the elderly in rural areas. Thus, it may be a marriage by a barren wife or a wife with only female children to another woman to beget children, particularly males, on her behalf and she assumes control over her and her offspring.⁹ This is so because Igbo society attaches utmost importance to the male child as it is believed that the male child ensures the extension of patriarchy and traditions. On the other hand, woman to woman marriage may be one contracted in order to provide credible social services for the elderly in rural areas. The latter is the focus of this article.

The above definition of marriage by the Act contrasts sharply with the woman to woman marriage in the South East of Nigeria and raises the fundamental query: what is the legal or constitutional standing of such marriage, which is a widespread customary practice among the Igbos? To methodically interrogate this question, this article is divided into six parts. Part II explores the concept of woman to woman marriage in the South East of Nigeria. Part III constitutes the pivot of our undertaking in this work and exposes how no availability of credible social services for the care of the elderly in rural areas has encouraged this kind of marriage to date. Part IV discusses the legal and judicial experience relating to woman to woman marriage. Part V examines its limitations and constraints. Finally, the concluding section recommends how best to attenuate whatever negative impacts or connotations this kind of customary marriage may exert in the face of modernisation.

Woman to woman marriage practised among the Igbos of South East of Nigeria (Igbo land) is a form of customary law marriage. This kind of marriage arises out of the desire of a barren woman to beget children or a wife with only female children to beget a male child to enable her to inherit her husband's estate. This desire is fueled by the system of patriarchy practised in Igbo land, by which importance is attached to male children because it is believed that they will preserve the family structure and traditions. The second kind of this marriage, which is the main focus of our remit, is where it is contracted as a means of getting permanent cheap labour, care, aide, or companionship for an elderly infirm female husband and not for want of children. Indeed, to ensure continuity of care for ageing mothers, children often marry a wife for them. This practice is exemplified by the case of Okonkwo v. Lucy Okagbue.¹⁰ In that case, the female husband already had female and male biological children. In fact, the marriage was contracted on behalf of the female husband by her children to ensure that their mother is adequately cared for in their absence¹¹ since they have in the past experienced a high turnover of servants who leave their mother without notice, either because of her difficult personality, high handedness or just ill luck. Wives of such marriages typically cling onto the mothers, for in Igbo cultural ethos (omenani) the payment of a bride price on the head of a woman signifies permanence of union and nothing short of death or serious provocation can separate the couple.¹²

It is not possible to determine the exact provenance of the practice of woman to woman marriage. According to Uchendu, ‘individuals interviewed on this practice spoke of its antiquity but could not state when exactly it came into existence.’¹³ Tales have also been told of the existence of woman to woman marriage as far back as 1914–15, with credibility and divine sanction given to it.¹⁴ By the 1930s it had become popular in parts of Igbo land,¹⁵ and with time, became institutionalised. Due to the assumed benefits that accrue from it, it is regarded as a legitimate social practice by the Igbos.¹⁶ Generally, this kind of marriage is normally contracted between a much older female husband and a younger female wife who is in most cases destitute, illiterate, and vulnerable or an orphan from a low socioeconomic background, without adequate job skills.¹⁷ When the female husband is ready to marry a wife, she will ask her friends and relations to help her find a suitable girl. Where the intention behind the marriage is to bear children, the female husband's friends and relations will find a girl who previously gave birth outside wedlock, to ensure that the female wife is not barren like her female husband and will be capable of producing offspring, particularly male offspring. Once the necessary conditions for a valid customary law marriage, which are consent, payment of bride price, capacity, celebration, and taking home of the bride to the groom's house,¹⁸ are fulfilled, the marriage is deemed sealed.¹⁹ At this point, the female wife is released by her family to join her female husband in accordance with the system of patrilocal culture of marriage favoured in the South East of Nigeria. In rare cases, an instance of reverse polyandry rears its head, for instance where two or more females (as opposed to one female husband) pool their financial resources to pay for the bridewealth of a lone female wife, in which case she fulfils her marital duties to the two female husbands. Her allegiance and loyalty are owed to them equally. This is acceptable and deemed legitimate in the Igbo pantheon.²⁰ Normally, a man is fronted to do the marriage negotiations, but all expenses of the marriage rite are borne by the female husband. For this reason, the female husband alone has the right to discipline and take care of the female wife. The female husband is also responsible for selecting the sperm donor²¹ who might be her husband or a male relative. This arrangement was socially and culturally accepted and the female husband takes care of the children born by the female wife. She is regarded as their mother and they bear her name and the children are regarded as legitimate children by society.²² An illustration is Eugene Meribe v. Joshua Egwu.²³ In the evidence adduced before the court, the appellant claimed that his mother's female husband was his real mother. He gave this evidence: ‘She maintained me as her son. She put me in school and I lived with her as her son.’ In very rare cases, the female wife might be allowed, with the consent of the female husband, to choose her sex partner, because of the repercussions which may follow a wrong or bad choice. For instance, she may end up polluting the family with all sorts of children fathered by thieves, drug addicts, and other miscreants or even men with strange ailments.²⁴ They also fear the introduction of unwholesome and undesirable traits into the family,²⁵ and worst of all, having the children with an Osu²⁶ (an outcast). She might even fall in love with the man she selected and leave the marriage with her children. This was what happened in Odigie v. Aika²⁷ where the plaintiff (a female), being childless, married the defendant, another woman, in accordance with Esan custom. The plaintiff gave her consent for the female wife to select a man to sire a child for her, and the female wife subsequently got pregnant with the approved man. The plaintiff paid for the hospital bills, both antenatal and delivery bills. The female wife sought to elope with her chosen lover and their baby. The female husband sued them and begged the court to grant her custody of the baby as under Esan customary law she is the legitimate and legal parent of the infant. Her prayers were upheld by the customary court.²⁸ It is worth noting that culturally the...