CONFLICT ON THE CHOICE OF MARRIAGE AND THE EFFECTS ON THE DISTRIBUTION OF A DECEASED ESTATE IN NIGERIA AND SOUTH AFRICA

Abstract

The delusion of the superiority of the English law over the Nigerian customary laws, with the belief that indigenous legal systems are uncivilized, primitive and inferior, are false. A nation’s legal system cannot be divorced from its social realities, norms, values and religions. Thus, it is unethical by way of legislation to force the values and faith of a nation on another. The problem of conflict of choice of marriage stems from the mindset that the English marriage system is superior to customary mode of marriage and succession in Nigeria. The need for legal reforms of indigenous legal system should not be borne out of a feeling of inferiority but a need to balance competing social interest on the scale of equity, non-discrimination and fairness. This paper adopts a doctrinal approach in analyzing rising conflicts in Nigerian legal pluralism in the choice of marriage and its effect on the distribution of a deceased estate who died intestate and the approach of the court in resolving such conflict by first determining the status of parties under a marriage system and the actual legal regime that should regulate their affairs, including intestate succession. This study compares the South African Marriage regime with that of Nigeria and seeks to draw lesson points which can aid Nigerian Courts in resolving rising conflicts.