







































IZUNWA: Voluntariety in the Contract of Marriage and the Challenge of Duress 

 

 

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VOLUNTARIETY IN THE CONTRACT OF MARRIAGE AND THE CHALLENGE OF DURESS* 

 

 

Abstract 

For any human project including marriage, to be of value, it ought to proceed from the voluntary dispositions of the 

free subject. This means that for any act to be properly a human undertaking, it must have been done with concrete 

awareness, willingness and deliberate consent of those involved. Predicated on this proposition, the Christian-

Canonical Jurisprudence which informed the dictum of Lord Penzance in the celebrated case of Hyde v Hyde, made 

voluntariness of the parties to marriage a sine qua non to any valid celebration. But in the ancient and modern times, 

the issue of ‘duress’ has always operated to destroy the element of voluntariety in marriage. Whenever this happens, 

the consequence by law and policy is nullity. Using the doctrinal method of inquiry, this paper is structured to 

examine the concepts of voluntariety and ‘duress’ as they affect the marriage contract. It finds that despite the trite 

positions of the laws on this, people in their increasing numbers still enter into marriage under duress activated by 

different persons and under various situations. The instant paper recommends more than else a Christian pastoral 

engagement of the problem, through value driven pastoral orientations, and robust enforcement of available legal 

provisions against the operation of duress for marriages across all jurisdictions. 

 

Keywords: Voluntareity, Duress, Contract of Marriage, Consent 

 

1. Introduction 

Marriage is a universal institution which is recognized and respected all over the world. It is usually governed by the 

social and religious norms of the society. Essentially, ‘marriage, as it were, is about the union of a man and a woman 

for the purposes of living together in a community of love and having and rearing children.1 According to Osborn’s 

Concise Law Dictionary, the fundamental ethical component of the contract of marriage lies in its voluntariety. 

Hence, it is a ‘voluntary union for life of one man and one woman to the exclusion of all others...’2  it is this 

voluntariness which forms the bedrock of the contract of marriage, precisely as its formal cause, that is the victim of 

duress among other vitiating elements. Duress involves a coercion of the will or a situation in which one party has no 

realistic alternative but to submit to pressure. It invokes a sense of intimidation or illegitimate pressure against a party 

to the marriage.3 In its operation, it compromises the entire idea of voluntariety, thus exposing the vulnerable party to 

exploitation during the life of ‘the marriage’. It often comes by way of external pressures or emotional coercion 

activated and sustained by either of the parties against the other, parental/family pressures, socio-cultural norms and 

expectations as well as economic susceptibilities.  Note that of all the elements of the marriage contract outlined by 

Lord Penzance in his definition of marriage namely; voluntariety, monogamity, heterosexuality, indissolubility and 

exclusively,4only the element of voluntariety is universally accepted and defended. No known modern state, religion 

or culture espouses force/duress in the institution of marriage. It is one of the areas in which the principles of 

autonomy and self determination are critically needed so as to make the common life of two persons possible. For ‘if 

both or all partners get to be in charge of their own lives, then you have a greater foundation for making room for each 

other and growing together’5 In the progress of this paper, the relevance of voluntariness in human actions will be 

examined with particular emphasis on its consequences for the marriage contract. Furthermore, the vitiating element 

of duress and how it destroys voluntariety will be considered alongside some contentious issues surrounding the 

concept itself in global jurisdictions. The paper will end with few recommendations that will strengthen the institution 

of marriage against the vitiating ‘assault’ of duress and kindred forces. 

 

2. The Question and Relevance of Voluntariness in Human Actions 

Without doubt, human beings are not automatons; they are moral entities free from all forms of psychological 

determinations. Precisely as free moral agents, all human acts, actus humanus,6 properly so called are voluntary acts, 

arising from an intellectual election of object and oriented towards an entelechy – end or purpose. This requires 

knowledge, awareness, willingness, considered decision and deliberated accent of the will. According to Dario 

Composta, what appears as moral in human acts is only that which is guided by intelligence and will, or, in other 

terms, by understanding and willing, or also by awareness and consent. Their flux constitutes the voluntary.7 

Inferentially, voluntary acts require the concomitant presence by B: knowledge (awareness of the goal) and A: interior 

 
*By Maurice Okechukwu IZUNWA, PhD (Phil), MA (Phil), MA (Rel), LLM, LLB, BL, Senior Lecturer, Department of 

International Law and Jurisprudence, Faculty of Law, Nnamdi Azikiwe University, Awka, Nigeria. 
1 M. O. Izunwa, ‘Statutory Marriage and Contemporally Challenges: A Contextual Re-reading of some Modern Options’ 

[2010](1)(2) Confluence Journal of Private and Property Law, 75. 
2 S Bone (ed.), Osborn’s Concise Law Dictionary (9th edn, London: Sweet and Maxwell, 2001) p. 246. 
3 Cf. Ludmer v. Ludmer, 2013 ONSC 784, [2013] O. J. No. 699. 
4 Hyde v Hyde (1861-1873) ALL ER 175. 
5 ‘Its’ Your Choice: Personal Autonomy in a Relationship’ <https://genderminorities.com2021/03/11/autonomy-in-a-

relationship/>accessed on 17/07/2023. 
6 Human act(s), are completely different from Acts of Man, which are – those gestures and actions performed by a person, 

but not in a specifically human way. Examples include crying in a dream or acting under the effect of drugs or hypnosis. 
7 D Composta, Moral Philosophy and Social Ethics (India: Bangalore Theological Publications, 1988) p.14. 

https://genderminorities.com2021/03/11/autonomy-in-a-relationship/
https://genderminorities.com2021/03/11/autonomy-in-a-relationship/


African Customary and Religious Law Review (ACARELAR) 4 (2023) 

 

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or exterior action performed by a person. From the combination of ‘A’ and ‘B’ is obtained (+A) + (+B) = ‘V’, where 

‘V’ represents a voluntary act.8 As it were, ‘in man the voluntary act is structured, therefore, into different moments 

which range from the original perception of the good to the enjoyment of the achieved end’.9 It was left for Billuart, in 

the seventeenth century to sketch the various moments of the movement as follows: 

 

1. Original apprehension of the good. 2. Simple inefficacious volition of the good. 

3. Judgment on the possibility of the good.  4. Efficacious intention 

5. Deliberation (consilium) 6. Consensus (consensus) 

7. Election of the means through a judgment. 8. Practical election (electio) 

9. Command of reason (imperium). 11. Fruition of the good. 

 

This principle of voluntariety in the proper human actions is the centre of criminal jurisprudence in almost all 

jurisdictions. It requires that to be guilty and convicted as such, it must be demonstrated beyond reasonable doubt that 

the accused over and above doing the act or omitting to do the act (actus reus) constituting the offence so charged, 

must also have the intention/intent to commit the offence. The doctrine of mense rea in criminal law is the legal 

equivalent of voluntariety in ethics. Hence, ‘in order to be guilty, the criminal must have committed the act in a 

culpable mental state’.10 Culpability, in this sense, reflects voluntariety. Accordingly, all things being equal, it is 

morally wrong to punish a person for an act done to society innocently and unwittingly.11  

 

Yet another area of law where voluntary assent of a person remains a sine-qua-non is in contractual transactions. It is 

for this reason that contracts are treated as forms of voluntary arrangements which need to be protected by law.12 And 

for any contractual relation to be enforceable, the parties’ intention to be bound must be ascertained and established.13 

In this understanding, for a contract to exist parties must voluntarily enter into it, they must agree to the same thing, in 

the sense that, there must be a meeting of their minds to the same thing. This meeting of minds is what is called 

Consensus ad idem and that is precisely the basis of contractual obligation.14 It involves the apparent meeting of 

minds of the parties, and an apparent union of their wills. Thus, there must be two (or more) assenting minds, and the 

parties agreeing in opinion.15  Even in religious categories and meanings, nobody is reckoned as having committed sin 

except when the person has voluntarily acted or omitted to act in respect of the object or the matter constituting the 

sin. As a matter of fact, for any sin to crystallize there must be knowledge and freedom of action. This knowledge and 

freedom taken together comprises voluntariety. More or less, voluntariety is directly proportional to the degree of 

personal involvement in the sin. Hence: 

It is not the gravity of the matter that makes a sin mortal, but rather the degree of personal 

involvement in the decision to act. And it is not the lightness of the matter that makes a sin venial, 

but rather the absence of such involvement. One is either involved in the decision in fact, or one is 

not.16 

 

The clear implication of the above position is that to constitute sin, one should have full awareness regarding the 

seriousness of the law. This requires that the mind shall know what the will does.17 Hence, the element of full 

understanding remains a necessary concomitant to achieve voluntariety. 

For an act to be adjudged voluntary, the subject acting or omitting to act must do so in complete freedom of the will. 

Thus ‘an essential condition of moral action is freedom of will. Without, at least, a minimum of freedom of decision, 

no moral act is possible’.18 Alexander Willwoll, emphasizing the jurisprudence of free will and its relationship to 

responsible actions observes as follows: 

 
8 Other possible outcomes of some combination are: (-A) + (-B) = Violent Act; (+A) + (-B) = Spontaneous Action and (-A) 

+ (+B) = Speculative thought (outside the moral order). 
9 D Composta, op cit, p.19. 
10IKE Oraegbunam & RO Onunkwo, ‘Mens Rea Principle and Criminal Jurisprudence in Nigeria’ (2011) Vol 2 Journal of 

International Law and Jurisprudence, p.251 
11‘Mens Rea’ <http://www.mojolaw.com/info/clo45> accessed on 27th September 2012; see also C Elliot, and F Quinn, 

Criminal Law (3rd edn, Harlow: Pearson Education Limited, 2000) pp.12-27. 
12H J Berman and WR Greiner, The Nature and Functions of Law (3rd edn, New York: The Foundation Press INC, 1972) 

p.548. 
13 Balfour v Balfour (1919) 2 KB 571. 
14 BA Garner (eds.) Black’s Law Dictionary (9th edn,Minessota, West Publishing Co., 2009) p.346 
15Tinn v Hofmann (1873) LT 271; Green Fingers Agro-Industrial Enterprises Ltd v Yusufu (2003) 25 WRN 67; see also IE 

Sagay, Nigerian Law of Contract (2nd edn, Ibadan: Spectrum Law Publishing, 1993) p.36 
16 TE  O’Connell, Principles for a Catholic Morality, (Revised edn, New York: HarperCollins Publishers, 1990) p.100. 
17The kind of knowledge required to constitute sin is called evaluative knowledge which involves a critical reflective 

judgment about the values involved in a thing. It is concrete knowledge. To know evaluatively, one stands before a particular 

thing, a particular experience and interacts with it, finds it to be good or bad, beautiful or ugly and appreciates it, understand 

it. Evaluative knowledge is deeply personal. 
18KH Peschke, Christian Ethics: Moral Theology in the Light of Vatican II, (Bangalore: Theological Publications, 1999) p. 

232. 



IZUNWA: Voluntariety in the Contract of Marriage and the Challenge of Duress 

 

 

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The fact of free will becomes clearer when it is considered in relation to the ethical activities of 

persons. Without free will and therefore without the possibility to will this or that, clearly a man 

cannot be held any more responsible for his willed actions, he is no more worthy of praise or blame 

than a sick man is for his sickness. Consequently, the moral goodness or wickedness of an act of 

the will could not meaningfully be separated from sheer utility…if free will is abandoned then the 

moral dignity of the person must also be renounced; this would be equivalent to saying that there is 

no sense whatsoever to human existence.19 

 

Hence, voluntariety evokes responsibility. No one is responsible for an act or omission which is not voluntary.20This 

is because voluntary actions or inactions are innate marks of man’s unique sense of self, of truth, of achievement and 

responsibility.21 The concept of responsibility for actions performed or not performed ‘is fundamental to any system 

of ethics, because claiming that people ought to take certain actions presupposes a choice which determines the action 

taken and for which the individual is responsible’22 What is more, is that the possibility of choice, freedom to act 

otherwise, is a specie of voluntary actions and an integral part of moral responsibility, since it involves the distinctive 

human capacity to deliberate. The substance of the argument is that: 

…moral responsibility would arise from the necessity of deliberation in order to achieve happiness 

(which is the end of all humans), and so praise of blame would primarily be bestowed upon the act 

of proper deliberation or careless deliberation (or no deliberation at all). Because this deliberation 

gives rise to choice, and because choice over the long run forms states of character, humans are 

morally responsible for both their choices and their states of character.23 

 

But it is generally agreed ‘that a person who has been coerced to do something did not do it freely and is not morally 

responsible for having done it’.24 The phrase ‘the agent is responsible for an action’ is actually the translation of the 

Greek expression ‘the agent is the cause of an action’. Impliedly, if it can be demonstrated that a person – the agent – 

is in some sense the cause of an action, by the principle of logical equivalence, we can equally hold without error that 

such an agent is in some sense responsible for the action he is said to have caused. In a summary, Aristotle offers 

some guidelines as the conditions for moral responsibility viz: (i) the agent must act in full awareness of what he is 

doing. (ii) He must will his actions, and will it for its own sake. (iii) The act must proceed from a fixed and 

unchangeable disposition.25 

 

It suffices to underscore in agreement with Aristotle that a person is the originating cause of his or her moral actions. 

The word ‘moral’ as used in this context implies ‘voluntary and free action’. Thus, concerning all actions of which a 

man is the first principle, which depends on him to happen or not to happen, the praiseworthiness and 

blameworthiness of all such actions also depend on him. Hence, he is responsible.26 According to Aristotle, ‘we 

ascribe responsibility to an agent when his action is performed voluntarily’27 Without responsibility by the agent, all 

judgment, as to the rightness or wrongness of an act or omission loses meaning since there is no conscious and 

deliberate relationship between the subject of the act or omission and the object. Indeed, without responsibility there 

cannot be any form of value judgment. A person who acted based upon his previous decision is responsible not only 

for having performed the action, but also for having performed the kind of action performed. This is because the 

person made the decision to perform based on his existing disposition of which he is also responsible for.28  

 

3. Marriage as a Voluntary Union: Legal Emphasis and Constraints 

Voluntariety implies and involves free consent. And in Scholastic categories ‘consent results from the combined 

actions of the cognitive, deliberative or critical, and volitional faculties.’29 Yet, these faculties cannot act in isolation 

 
19 A Willwoll ‘Free will’ in K Baker (ed.), Philosophical Dictionary (Washington: Gonzaga University Press, 1972) p.149 
20Actions are not considered voluntary, then, if (1) they are done in ignorance; (2) or they are not done in ignorance, but they 

are not free to the agent; (3) or they are done by force. For we also do or undergo many of our natural actions and processes 

such as growing old and dying, in knowledge, but none of them is either voluntary or involuntary. See Aristotle, 

Nichomachean Ethics, N. E., 1135a31-b2. 
21 MP Cosgrove, The Essence of Human Nature (Grand Rapids: Zondervan, 1977) p.38.  
22DM  Hsieh ‘Aristotle on Moral Responsibility’ 

<http://www.enlightenment.supersaturated.com/essays/text/dianamertzhsieh/aristotleresponsibility.html >accessed on 1st 

October 2012. 
23 Ibid 
24H Frankfurt, ‘Alternate Possibilities and Moral Responsibility’ in J Feinberg and R Shafer-landu (eds.), Reason and 

Responsibility: Readings in Some Basic Problems of Philosophy (Belmont: Wadsworth Publishing Company, 1999) p.460 
25 Aristotle, The Nichomachean Ethics, Bk 2, ch 4. 
26 Aristotle, The Eudemonian Ethics, Bk. 2. Ch 6:9-10. 
27LLG Espindola, ‘Voluntary Action and Responsibility in Aristotle 

<http://www.philosophy.ox.ac.uk/__data/assets/pdf_file/0017/1907/Gomez_-_Aristotle.pdf >accessed on 17th of September 

2014 
28 Ibid 
29 JA Coriden et el. (eds.), The Code of Canon Law: A Text and Commentary (London: Geoffrey Chapman, 1999)p.774 

http://www.enlightenment.supersaturated.com/essays/text/dianamertzhsieh/aristotleresponsibility.html
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of one another. If they do, the act of matrimonial consent is not simply an act of the person. Since in the nature of 

man, an action or inaction has value or dignity to the extent it is voluntary, all serious human engagements ought 

therefore to be done voluntarily to be relevant. And one seldom finds a human commitment which is more serious in 

fact than the whole issue of marriage contract. Little wonder Fearon observed that: 

Marriage is more than a personal relation between a man and a woman. It is a status founded on 

contract and established by law. It constitutes an institution involving the highest interests of 

society. It is regulated and controlled by law based upon principles of public policy affecting the 

welfare of the people of the state. Marriage, as creating the most important relation in life, [has] 

more to do with the morals and civilization of a people than any other institution….30 

 

Marriage is much more than a contract, in the words of Brodie ‘the contract of marriage is the most important of all 

human transactions. It is the very basis of the whole fabric of civilized society’.31 Therefore, it goes without saying 

that marriage commitment must be made with the fullest sense of consciousness, awareness, understanding, reason, 

deliberation, and free consent. Under the Common law and in line with the Nigeria Marriage Act, ‘Marriage is a 

contract32  which must be entered into freely. Both intending spouses must be capable of making the decision to get 

married. A marriage can be annulled or be void if consent is not given by the two individuals who entered into 

marriage.’33 As a matter of fact: 

Marriage is a public act which must be between two consenting adults. It is an act that should not 

be entered into lightly as the duties and rights of marriage have consequences not only for the 

marrying couple but their families, friends and the society at large. 

 

The laws are mindful of the fact that marriage enjoys the loftiest engagement of man and society for which it must be 

engaged with the greatest sobriety. In Loving v Virginia34, the Supreme Court of the United States rightly held that 

‘Marriage is one of the basic civil rights of man, fundamental to our very existence and survival.’ 

 

Perhaps in consideration of the importance of Marriage to human life and society, Lord Penzance in his definition of 

marriage in the case of Hyde v Hyde35, made consent or voluntariety the first and quintessential element for any valid 

celebration of marriage. Thus, between any two parties intending or desirous to marry, the formal cause must be a 

voluntary desire of each other. In essence, the consent to marry as it applies to each and every one of the parties must 

be free from all forms of coercion internal or external. It was left for the Nigeria Matrimonial Causes Act36of 1970, to 

provide for the various factors that are capable of destroying and/or affecting free and voluntary consent to marry.37 

These include that the marriage was obtained by duress or by fraud; or that one party to the marriage is mistaken as to 

the identity of the other or as to the nature of the ceremony performed; or that any of the parties is mentally incapable 

of understanding the nature of the marriage contract. It is the position of the law that where any of the above 

mentioned factors exist and/or prevail, the consent given to such marriage is not real and therefore cannot sustain or 

support a valid marriage contract. In other words, the marriage is ipso facto void.38 

 

However, The Matrimonial Causes Act in Section 5 (1) (b) (i) – (iii) provides for other factors which affect real 

consent and which shall have the effect of rendering a validly celebrated marriage voidable. The factors so provided 

include the situations where either of the parties to the marriage is of unsound mind or is mentally defective or is 

subject to recurrent attacks of insanity or epilepsy. And for avoidance of doubt the Act provides that: 

‘mentally defective’, means a person who, owing to an arrested or incomplete development of 

mind, whether arising from inherent causes or induced by disease or injury, requires oversight, care 

 
30 Maynard v Hill 125 US 190, 
31JF Brodie ‘Actions for Breach of Promise to Marry’ (1852-1891) Vol 20 No 2 The American Law Register 65 

<http://www.jstor.org/stable/pdfplus/3303899.pdf?acceptTC=true&jpdConfirm=true> accessed on 14th September 2014 
32Marriage is considered a civil contract, but of a peculiar character and subject to peculiar principles. It certainly does differ 

from ordinary common law contracts, by reason of its subjet-matter and of the supervision which the state exercises over the 

marriage relation which the contract institutes’. See <http//www.duhaime.org/Legal Dictionary/M/Marriage.aspx> accessed 

on 1st October 2012. 
33TO Glasgow, ‘the importance of consent’ 

<http://www.thevoiceslu.com/features/2009/april/11_04_09/The_importance_of_consent.htm> accessed on 17th September 

2014 
34 338 US 1 (1967) 
35 (1866) LR1P&D 130 
36 Section 3(1) (d) (i) – (iii)] 
37The Marriage Act was completely silent on the issue of the consent of the parties. This gap was filled by the Matrimonial 

Causes Act of 1970 which provides for the real consent of the parties, that is, consent obtained without duress or fraud cf. 

MCA (1970) S.3(i) (d) (i) 
38A void marriage is one which has no legal effects. Everything done to establish such a marriage relation is as it were a 

nullity. This is quite different from a voidable marriage which remains valid until annulled, that is, a valid act that can be 

voided. cf. S Bone (ed.), Osborn’s Concise Law Dictionary, (9th edn, London: Sweet and Maxwell, 2001) p.402; Garner, 

ibid, 1709. 

http://www.jstor.org/stable/pdfplus/3303899.pdf?acceptTC=true&jpdConfirm=true
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IZUNWA: Voluntariety in the Contract of Marriage and the Challenge of Duress 

 

 

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or control for his own protection or for the protection of others and is, by reason of that fact, 

unfitted for the responsibilities of marriage.39 

 

Nwogugu observes, with great approval, that it is a cardinal principle of our law that the parties to a marriage must 

have freely consented to the union. Incisively, he noted that complete absence of consent will invalidate the marriage 

and therefore does not raise many difficulties to the Courts. But in those common cases where there exists an apparent 

consent, that is, where a party, under some prevailing circumstances does not give his true or real consent or have his 

consent negatived by some factors the courts have been called to more critical commitment.40 The courts have indeed 

held in a plethora of cases that the absence of a genuine consent will vitiate marriage41. All such decisions are on all 

fours with the vision of the Universal Declaration of Human Rights, where it states that ‘marriage shall be entered into 

with the free and full consent of the intending spouses’.42 Interestingly, the Convention on Consent to Marriage, 

Minimum Age for Marriage and Registration of Marriages, has a more serious but similar provision to the effect that: 

No marriage shall be legally entered into without the full and real consent of both parties, such 

consent to be expressed by the person after due publicity and in the presence of the authority 

competent to solemnize the marriage and of witnesses, as prescribed by law.43 

 

In what follows, the element of duress as an impediment to voluntariety is taken up and discussed.  

 

4. The Operation of Duress and Its Consequences for Marriage Contract 

 In the will lies the power to determine actions according to the voluntary options of the free subject. Duress occasions 

when the will, precisely as the elective and executory chamber of the rational subject is overpowered. Actual beating, 

threat and perhaps imprisonment of a would be spouse in order to achieve consent constitutes duress.44 Put a little 

differently, duress means fear which is so over bearing that the element of free consent is absent. Of great relevance is 

the English Case of Szechter v Szechter,45where Sir Jocelyn Simon summarized the law on duress in a statement 

unanimously approved in Singh v Singh46, as follows: ‘It must…be proved that the will of one of the parties thereto 

has been overborne by genuine and reasonably held fear caused by threat of immediate danger (for which the party 

himself is not responsible), to life, limb, or liberty, so that the constraint destroys the reality of consent’. 

 

In the case of Parojcic v Parojcic47 a daughter who had just contrived to leave Yugoslavia and reach England was 

threatened by her father on arrival that unless she married the man who accompanied him, whom she had never met 

before, she would be sent back to Yugoslavia. In the instant case, the court found the prevalence of the element of 

duress and granted decree of nullity. 

  

Note that what constitutes duress varies according to circumstances of each case but depends to a large extent on how 

far the volitional capacity and freedom has been overpowered. Thus, marriage contrived to escape from totalitarian 

regime amount to duress48; that celebrated under threat of being killed is also void on account of duress.49 What is 

more, marriage which is entered into under threat of being made bankrupt and being shot was voided for duress.50 It is 

therefore trite that for a plea of duress to succeed, there has to be an evidence of fear otherwise the action fails. Hence 

in Singh v Singh51, a marriage arranged by the parents of two Sikhs was held to be voluntary. The court found that 

though the petitioner had never for once cast his sight on the would be husband prior to the marriage day, and as a 

matter of fact, went through the marriage for respect of the tradition of her people, fear was not implied. In effect the 

court reasoned that mere respect for parents is positive and normal and does not translate into duress for the purpose 

of nullity.52 Contrast the above with the fact of Hirani v Hirani53, where the parents of a Hindu girl, opposed her 

relationship with a Hindu boy and went further to arrange a marriage with a Hindu man. When the girl resisted, the 

 
39 Matrimonial Causes Act (MCA) See.5(2) 
40  EI Nwogugu, Family Law in Nigeria (Revised edn, Ibadan: Heinemann Educational Books, 1974) p.136 
41 Osamawonyi v Osamawonyi (1972) 10 Sc 1 
42 Article 16 (1)  
431994, Article 1 (1); See also, Protocol to The African Charter on Human And Peoples’ Right On the Rights of Women in 

Africa, Article 6 (a) and the Recommendation on Consent to Marriage, Minimum Age for Marriage and Registration of 

Marriage (1905), Principle 1 (a). 
44 Buckland v Buckland (1967) 3 All ER. 300. 
45 (1971) 2 WLR 170; (1970) 3 ALL ER 905 
46 (1971) 2 WLR 963; (1971) 2 ALL ER 828 
47 (1958)1 WLR 1280; (1959) 1 ALL ER 1 
48 H v H (1953) 2 ALL ER 1229. 
49 Hussein v Hussein (1938) 2 ALL ER 344. 
50  Scott v Sebright (1886) 12 PD 21 
51  Supra 
52Similarly, in the absence of fear or coercion, a mere ulterior motive is not enough. In the case of Silver v Silver (1955) 2 

ALL ER 614, a German girl married an Englishman in order to come to England to live with another Englishman, no duress 

was implicated, but fraud may crystallize. 
53  (1982) 4 FLR 232. 



African Customary and Religious Law Review (ACARELAR) 4 (2023) 

 

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parents threatened to withdraw all support from her and to oust her from the family. The girl was only 19years old 

then and cannot support herself nor sustain a house rent. The court found duress and held that it was not necessary, 

literally, to find a threat to life, limb or liberty in order to occasion duress capable of grounding nullity. It is enough 

that the threat was substantial to the extent that the victim acted by it. This is a better reasoning. Indeed, concerning 

the measure or degree of threat sufficient to ground nullity, Dodss citing Ormrod LJ observed that ‘the crucial 

question…is whether the threat, pressure, or whatever it is, is such as to destroy the reality of consent and overbears 

the will of the individual.54 

 

The elements of responsibility for and/or instrumentality to the situation giving rise to the use of threat; on the one 

hand, and the element of fear reasonably entertained by one of the parties perhaps the petitioner on the other hand, 

have been hotly contested in respect of the grant of the decree of nullity. Indeed, legal pundits have bordered 

themselves with the question of party’s responsibility for the threat given, which affected consent. Hence in 

Buckland’s Case,55 the court reasoned that the decree would not have been granted had the petitioner been found 

guilty of offence alleged. Similarly, in Griffith v Griffith56 where a man was forced to marry a girl under the false 

threat of prosecution for unlawful sexual intercourse with the said girl who is under 17-years of age, the court 

suggested ‘that the approach should be whether the fear was justly imposed.’ As it were, if the fear is justly imposed 

the marriage is valid and binding otherwise it is not. Fear could not be justly imposed if the party was not responsible 

for it.57 In the instant case, the court declared the marriage void. 

 

5. A Moral Response to the ‘Reasonings’ in ‘Buckland’s and Griffith’s’ Case 

But with due respect, this paper argues that it is a bad law, proceeding from an improper jurisprudence to hold a 

marriage valid which was entered into in fear, just for the reason that the party is responsible for the fear. Granted that 

a person cannot be allowed to benefit from his fraud or crime, the institution of marriage affecting not only the 

‘responsible’ party but also the other innocent party as well as the state should be secured from the inconvenience of 

this rule. To hold such a marriage valid is a mere technical extension of the rule of criminal law that one cannot allege 

compulsion when he/or she is responsible for or instrumental to the same. This paper considers such an extension of 

criminal law principle to the field of marriage as the most unconsidered extrapolation ever conceived in law. Fear or 

duress, irrespective of whether the petitioner or any of the parties to the marriage is responsible for it or not, vitiates 

voluntary action of a free moral agent, a quality of action quintessential to human act and more so, to marriage. The 

proper question to be asked at all times and without more is whether the parties to a marriage freely desires and 

consented to marry each other. To raise the question of ‘responsibility for the threat’ occasioning the diriment fear is a 

hermeneutical challenge to and /or outright summersault of the spirit of the definition of marriage by Lord Penzance. 

It is also a moral absurdity. 

 

Another contentious issue in duress is as to whether the fear, occasioning duress and overpowering the will must have 

been reasonably entertained or not. On this, there has been conflicting dicta: Scott v Sebright58 supports a subjective 

approach which considers the fear entertained from the perspective of the person involved as opposed to the 

standpoint of a reasonable man in the circumstances. On the other hand, Buckland’s case59 and Szechter’s60 case favor 

an objective approach which considers the fear entertained from the view point of a reasonable man. The latter 

position, with due respect is wrong in the opinion of this work. Although the objective approach of reasonableness has 

been made applicable and exalted to the point of being a rule in all legal transactions and issues, marriage for all 

intents and purposes transcends the considerations of logic and the technicalities of formal standards precisely because 

it deals with life partnership in love. Law must not pretend insensitivity when a love relationship meant for life is in 

issue. The language and grammar of love is fraught and understood in the intersubjectivity of persons than in the hard 

categories of contract simpliciter. It is a mark of a good jurisprudence to take ‘judicial’ notice of this fact of life. Here 

Natural Law School of jurisprudence will operate to direct all decisions or legislations. In effect, once a party to a 

marriage is caused to enter into that marriage by reason of fear occasioned by duress, it is immaterial that a man of 

ordinary courage could not be so moved or fettered.61 The proper question to ask is whether the party was in fact 

actually caused to move into the said marriage by fear. If the answer is in the affirmative, the marriage is a subject 

matter for the declaration of nullity. Robert Brown in his renowned article ‘Duress and Fraud as Grounds for the 

Annulment of Marriage,’ observes as follows: 

… the weight of modern authority is probably to the contrary, holding that if there were coercion in 

fact the marriage should be dissolved, even though a more determined person would have been able 

to resist such pressure…the marriage resulting from undoubted coercion is just as intolerable to the 

 
54  M Dodds, Family Law (4th edn, London: Old Bailey Press, 2003) p. 26. 
55 Supra 
56  (1944) IR 35 
57   Dodds, op cit, p26 
58  Supra 
59  Supra 
60  Supra 
61  Marre v Marre, 184 Mo. App.198, 168 s. W. 636 (1914); See also Doscher v Schroder, 105 NJ. eq. 315, 147 Atl.781 

(1929) 



IZUNWA: Voluntariety in the Contract of Marriage and the Challenge of Duress 

 

 

7 

victim as one resulting from sufficient duress to overcome a person of ordinary firmness would be 

to that kind of a victim. Furthermore, duress is a voluntary act, and it may reasonably be supposed 

that the person exerting it knows about and relies on the lack of firmness of his victim. An 

objective standard of duress unjustifiably permits such advantage to be taken.62 

 

Butt J, stated the principle clearer in Scott v Sebright63 when he observed that:  

whenever from natural weakness of intellect or from fear whether reasonably entertained or not – 

either party is actually in a state of mental incompetence to resist pressure improperly brought to 

bear, there is no more consent than in the case of a person of stronger intellect and more robust 

courage yielding to a more serious danger. 

 

In Ayiegbusi v Ayiegbusi, a Nigerian Case64, the father of the petitioner threatened to curse her if she refused to marry 

the respondent. While the promise of a curse may not mean much for some persons, in the African Igbo setting, it is of 

very high consequence, particularly, for a girl who is looking toward bearing children. Even where some African-Igbo 

girls will be undaunted by threat of curse, this particular girl was emasculated with fear and that subjective fear was 

sufficient for the petition to succeed. 

 

6. Addressing the Prevalence of Duress in Contemporary Marriage Contracts 

Addressing the prevalence of duress in contemporary marriages is of utmost importance and critical for ensuring 

liberty of contract with such extent of freedom characteristic of moral subjects. Considering the enormity of harm 

arising from marriages induced by duress, and further recognizing the pervasiveness of such cases, it is of high-

priority that laws, policies and practices across jurisdictions rise to the occasion. In this way, individuals will be 

enabled to make personal marriage decisions devoid of undue pressure. According to Hannah Wu of the United 

Nations Human Rights Commission: 

Ending forced marriage requires strengthened and concerted efforts in all contexts, following a 

collaborative approach, as we can only make a difference together. We must address this issue in 

partnership involving all stakeholders at community, national, regional and global levels, in both 

peace and conflict situations. Above all, we need to work with girls and women.65 

 

In line with the above reasoning, it is recommended that states should take the following into account as fitting 

responses to the challenging situation: Targeted awareness education campaigns; legislating, strengthening and 

enforcing uniform consent age in respect of marriage; Introduction of sufficient waiting periods before celebration of 

marriage; Integral pre-marital marriage counseling and classes; Criminalization of forced marriages and prosecution 

of offenders; Compulsory pre-nuptial agreements; Mandatory reporting of incidences of forced marriages; 

Strengthening legal protection of vulnerable persons; Sensitivity to differential cultural norms; Activating channels of 

International Cooperation; Mobilization of NGO’s and CSO’s; and Partnering with the Churches. 

 

According to Nelson Mandela, education remains ‘the most powerful weapon which can be used to incident change’ 

and for Epictetus, the philosopher ‘only the educated are free.66 In the light of the above, it is a ‘moral imperative’ that 

states should embark on purposive educational campaigns that will facilitate people’s awareness of the presence and 

consequences of duress in marriages, that fall victim, as well as steps to take to avert such difficult situations. Such 

campaigns should be, especially, targeted at places and ‘spaces’ where young persons are commonly reached namely; 

schools, community and commercial centres, mass media channels and social media halls/platforms, to mention a few. 

Of note is that there is no minimum acceptable age of marriage applicable to all the countries of the world. The age of 

consent ranges from as low as 11 to as high as 20 years old as is applicable in Nepal.67 Some Countries have laws that 

allow marriage below the age of 18 often with parental or judicial consent, while others have lower age limits or no 

specific minimum age at all.68 In Nigeria for instance, the laws are not settled as to what constitutes the marriageable 

age.69 It is recommended that the minimum of 18 years prescribed by the United Nations Convention on the Rights of 

 
62RC Brown, ‘Duress and Fraud as Grounds for Annulment of Marriage’ (1935) Vol 10 Issue 9 Article 1 Indiana Law 

Journal 475 <htpp://www.Repository.Law.Indiana.edu/ilj/Vol10/Iss9/1> accessed on 17th of September 2014 
63 Supra. 
64 Unreported decision with Suit No.//238171 delivered on 29th April 1974 High Court of Western States, Ibadan Judicial 

Division, per Odulami 
65 Hannah Wu ‘Forced Marriage a Violation of Human Rights’ <https://www.ohehr.org/en/stories/2023/01/forced-marriage-

violation-human-rights> accessed on 28/7/2023. 
66 Cf. ’50 Powerful Education Quotes for Kids’ <https://www.splashlearn.com/blog/powerful-education-quotes-for-kids-to-

realise-the-importance-of-learning/> accessed on 28/7/2023. 
67 Nigeria Age of Consent and Statutory Rape Laws <https://www.ageofconsent.net/world/nigeria> accessed on 7/7/2023. 
68 Angola allows with parental consent while Central African Republic allows with judicial consent but a place like Gambia 

has no minimum age of marriage. 
69 There exists a disparity among the Matrimonial Causes Act (1970), the applicable common law and the Marriage Act 

(1914). 

https://www.ohehr.org/en/stories/2023/01/forced-marriage-violation-human-rights
https://www.ohehr.org/en/stories/2023/01/forced-marriage-violation-human-rights
https://www.splashlearn.com/blog/powerful-education-quotes-for-kids-to-realise-the-importance-of-learning/
https://www.splashlearn.com/blog/powerful-education-quotes-for-kids-to-realise-the-importance-of-learning/
https://www.ageofconsent.net/world/nigeria


African Customary and Religious Law Review (ACARELAR) 4 (2023) 

 

8 

the Child70be adopted across all jurisdictions. States should endeavour to ensure that the provision is strengthened by 

applicable policies, so that, parties to marriages can have the capacity to make informed decisions about marriage by 

reason of maturity of age. In that vein, States should require marriage registrars and officials in licensed places of 

marriage to verify and ascertain that all claimed consents are freely given before the celebration of any marriage. 

Also, given that there are countries or states that do not have elaborate process for pre-marriage bans and publications, 

it is recommended that a mandatory waiting period be introduced between the application for marriage and the actual 

celebration of same. This avails the couples some time to think issues out and ensure that they are not under any 

pressure at all. For instance, in the United States of America, places like Alaska, Florida and Iowa, etc, have 

mandatory three-day waiting period.71 Such time permits them to reflect on their decision and seek appropriate advice 

if need be. 

 

It is also necessary that the laws of nations should provide for compulsory (mandatory) pre-marriage 

course/counseling and develop an integral and intensive content which is to be taught by experienced professionals. 

This is an area where the church and state can form a synergy since the churches are conversant with a similar 

practice. Such themes as psychology of relationships/marriage, communication skills, conflict resolution strategies 

and rights and obligations of parties within marriage are to be taught. The said course ought to highlight ‘the core 

elements of relationships and concentrates on exploring these elements in the company of other couples preparing for 

marriage.’72 It is to be designed in such a way as to assist couples invest in their relationship and ‘build a strong 

marriage.’73 The provisions of the Canon law of the Catholic Church on this issue and the pastoral practice in respect 

of same, remain exemplary. 

 

Another step that could be useful is to have a legal but optional pre-nuptial agreement74entered into by parties before 

the ratification of their marriage. Copies of such agreements should be deposited with the marriage registry and/or 

with the Court. Promoting and enforcing the use of such pre-nuptial agreement, where it applies, will go a long way in 

ensuring that marriage decisions are made with full awareness and without duress or constraints arising from any 

quarters. 

 

Criminalizing duress in the contract of marriage could be a good legislative approach. Stringent penalties should be 

provided by the legislature for act(s) of compelling another person(s) to marry particular person(s). This could serve 

as deterrence.75 Already, forcing someone to enter into a marriage against that person’s will is a criminal offence in 

Dutch law and in 2011 European Council Convention required all states parties to turn forced marriage into a criminal 

offense.76 Under the International law, the Rome Statute77in its Article 7, has provided a prop for state parties to make 

specific laws criminalizing forced marriages.78 A case is hereby made for the globalization of this legislative initiative. 

Undoubtedly, marriage entered into by duress is a human right violation and calls for activating the laws that protect 

persons against the violation of a cluster of rights; to dignity, life, health, liberty and discrimination. It further calls for 

context specific policies and stringent legal measures in the form of civil protection orders.79 Hence, there is an urgent 

need to review and strengthen laws that protect persons from all forms of duress within marriage whether in the forms 

of emotional, financial or physical pressure. Closely connected with this recommendation is the need to make laws in 

respect of mandatory reporting of incidents of use of force to compel persons into unconsented marriages. Indeed, if 

 
70 This was adopted by the General Assembly of the United Nations in its resolution 44/25 of 20 November, 1989. 
71 Cf. Lyle Therese et al ‘Marriage License Requirements’ <https://www.findlaw.come/family/marriage/marriage-license-

requirements.html#> accessed on 23/7/2023. 
72‘Catholic Marriage Courses: What to Expect’ <https://www.accord.ie/news/marriage-preparation-courses-what-to-

expect#> accessed on 20/7/2023. 
73 ‘Try Marriage Course’ <https://themarriagecourse.org/try/the-marriage.course#> accessed on 7/7/2023. 
74 A pre-nuptial agreement is a written contract created by two people before they get married. It lists all the property each 

person owns and debts too and spells out each person’s property rights during the marriage and in the event of eventual 

divorce. Note that the Catholic Church holds prenuptial agreements unacceptable because it creates conditions that 

undermine legitimacy and indissolubility of the marriage before it even starts. Indeed, the use of prenuptial agreements do 

not fit into the Christian version of marriage but it does serve the Islamic understanding of marriage at least. 
75 Cf. Francis Nguyen ‘Untangling Sex, Marriage, and other Criminalities in Forced Marriage’ [2014] (6) Goettingen 

Journal of International Law, 1-45. 
76 ‘The Criminalization of Forced Marriage under Dutch law and in Rome Statute’ 

<https://www.cambridge.org/core/books/abs/force-marriage/criminalization-of-forced-marriage-under-dutch-law-and-in-the-

rome-statute/> accessed on 25/07/2023. 
77 Rome Statute of International Criminal Court, Opened for signature, July 17, 1998. 2187 U. N T. S. 90-Entered into force, 

July 1, 2002. 
78 The Rome Statute does not criminalize forced marriage as a separate crime but bundles it together with what it calls ‘other 

inhuman acts.’ 
79 Cf. Lisa. V. Martin ‘Restraining Forced Marriage’ [2018] (18) Nevada Law Journal, 919-984. 

https://www.findlaw.come/family/marriage/marriage-license-requirements.html
https://www.findlaw.come/family/marriage/marriage-license-requirements.html
https://www.accord.ie/news/marriage-preparation-courses-what-to-expect
https://www.accord.ie/news/marriage-preparation-courses-what-to-expect
https://themarriagecourse.org/try/the-marriage.course
https://www.cambridge.org/core/books/abs/force-marriage/criminalization-of-forced-marriage-under-dutch-law-and-in-the-rome-statute/
https://www.cambridge.org/core/books/abs/force-marriage/criminalization-of-forced-marriage-under-dutch-law-and-in-the-rome-statute/


IZUNWA: Voluntariety in the Contract of Marriage and the Challenge of Duress 

 

 

9 

by law, professionals as doctors, teachers, social workers and even the common citizens, are mandated to report 

suspected cases of use of force to induce marriage, then, appropriate authorities can intervene to provide assistance.80 

It is also important that the legislature, the courts and the law enforcement agencies are prepared to have a kind of 

Cultural and Cross cultural competence. This will help them to develop such cultural awareness or sensitivity that 

makes them understand and accept other people’s cultural identities.81 In this way, they can penetrate, decode and so 

respond appropriately to cultural nuances and challenges relating to duress in specific communities. 

 

Efforts need also to extend to the international frontiers for handling cross-border cases of forced marriages. For this 

reason, there is the need to set in motion some kind of international cooperation in the fight against duress in the 

contract of marriage. After all ‘international law supports order… and the attainment of humanities’ fundamental 

goals’ of advancing peace, prosperity, human rights and dignity, both in marriages and other sectors of human 

endeavours.82 

 

More still, Civil Society Organizations (CSO’s) and Non Governmental Organizations (NGO’s) contribute greatly to 

society’s safety and progress. They both ‘advocate for individual’s human rights protection and safety.’83 Yet the 

Church being the greatest expert in humanity, the moderator of the consciences of peoples’, women and society at 

large, and having all that it takes to teach, convince, persuade and convert, will be kept at the centre of the struggle to 

recover the essence of marriage.84 

 

7. Conclusion 

This paper has argued that at the core of all contractual relations, marriage inclusive, the freedom of the parties 

involved is paramount. Once this freedom is choked, the nature of the transaction changes substantially not 

withstanding that the form of the contract, on the face of it, may appear regular. Marriage as it were is, stricto sensu, a 

contract subject to the common conditions of contracts in general. To remain an act of a free moral subject, it has to be 

a voluntary endeavour. Its voluntariety is disclosed in an unconditional and unfettered consent of parties to marry. 

Once this liberty of consent is compromised, no matter the degree, the essence of marriage in all its ramifications 

stand betrayed, and so, the conjugal union becomes dead on arrival. From the discourse pursued in the instant paper, it 

is shown that duress is a major challenge to matrimonial voluntariety. In whichever form it manifests, whether by 

reason of over bearing pressure by a party or through substitution of a party’s consent with parental consent or by way 

of outright supervention of family preferences, duress85 is detrimental to ‘matrimonial intentionality’ and contrary to 

international best practices relating to marriage. 

 

Marriage in fieri (wedding) being the act giving life to the conjugal union is the contract per se from which arises 

marriage in facto esse (family). Hence, without a free contract, the family arising from there will suffer the problem of 

validity. To be saved, the family has to be a community established and sustained in the dialogue of free choice of 

parties to a marriage in which love is specific.86 Without doubt, the specificity of love excludes coercion and 

encapsulates concordance, consent in self-giving and self donation in a total and free way. Marriage is therefore a 

contract sui-generis requiring the highest degree of freedom and voluntariety of parties. Duress and its kindred 

weapons are therefore fundamentally opposed to marriage’s ethical, moral, religious and legal configurations. 

It is sustained in this paper that the establishment of marriage or rather the starting point of the family must be entirely 

set in a voluntary context. The said voluntariety remains its inexorable constitutive juridical element such that any 

form of compulsion is considered in law and morals as destructive, or at best dimunitive and reductive of marriage 

properly so called. The substance of the argument is that conjugal love consists in a free and unrestrained 

manifestation of the will and by that, is the efficient cause of marriage, which is responsible for bringing about the 

 
80 Cf. Rechard Thomas and Monique Reeves, ‘Mandatory Reporting Laws’ <https://www.ncbc.nlm.gov/books/NBK 56069> 

accessed on 21/7/2023. 
81 ‘Cultural Sensitivity – Wikipedia’ <https://en.m.wikipedia.org/wiki/culturalsensitivity#> accessed on 20/7/2023. 
82 O’ Connel et al ‘The Power and Purpose of International Law: Insights from the Theory and Practice of Enforcement’ 

<https://www.corteidh.or.cr> accessed on 01/07/2023. 
83 ‘Civil Society and NGO’s’ <https://vakilsearch.com/blog/civil-society-and-ngos#> accessed on 17/07/2023. 
84 Marriage is the basic unit of the family, and so, of the society. If it fails, the society fails to the detriment of all. The 

society rises and falls with the marriages contracted within it. 
85 Under the customary laws, parental consent is mandatory in the case of a bride-to be, irrespective of her age. No matter the 

rationale behind this rule of custom, the ‘mandatoriness’ of a consent other than that of the parties to the marriage sounds 

deterministic of marriage and is Ipso facto ruinous of the requisite quality of voluntariness. The implication of making 

parental consent mandatory before marriage is that where the parents or family do not support a particular marriage 

preference of their ward(s), they can foreclose such transaction(s) notwithstanding the intensity of their ward(s) option. (Cf. 

E. I. Nwogugu, op.cit, p. 20). Also, in Royal Marriages worldover, one finds another instance of the superposition of family 

preferences over the liberty of their ward(s) intention to marry. For instance, the Royal Marriages Act of 1772 which was 

repealed on the 26th March, 2015 provided that no descendant of George II, male or female, could marry without the consent 

of the reigning monarch. The regal consent was to be set out in the license and in the register of marriages, (Cf. Royal 

Marriages Act, 1772 <en.wikipedia.org/wiki/Royal-Marriages-Act-1772/> accessed on 12/07/2023). 
86 Cf. D. Composta, Moral Philosophy and Social Ethics (Bangalore: Theological Publications in India, 1988) pp 132-133. 

https://www.ncbc.nlm.gov/books/NBK%2056069
https://en.m.wikipedia.org/wiki/culturalsensitivity
https://www.corteidh.or.cr/
https://vakilsearch.com/blog/civil-society-and-ngos


African Customary and Religious Law Review (ACARELAR) 4 (2023) 

 

10 

union in the first place. By reason of this, voluntariety becomes the single, indivisible, irrevocable, unsubstituted act 

of the will, manifested by the contracting parties, and which is effective for their union, rights and obligations.87 It is 

this matrimonial consensus that completes the exterior juridical element of marriage and drives the reciprocal 

donations preceding, accompanying and following the actual celebration of marriage.88 

 

All in all, the notion of voluntariety in the contract of marriage and the challenge of duress thereof presents intricate 

and multifaceted issues that call for careful consideration. Marriage, precisely as a union in which parties must 

contract willingly, with full understanding of their rights and responsibilities must be devoid of all shadows of 

constraints. That way, parties will contract with genuine consent without any undue influence. Only in this way can 

the sacred institution be safeguarded against potential manipulations which make it difficult for parties to benefit 

maximally from it. While it is the case that modern states/legislatures have made significant strides in addressing 

issues of forced marriages and coercive practices connected thereto, this work recommends that the church, and other 

religious bodies, precisely as experts in humanity, should intervene with stronger moral orientations in marriage 

preparatory classes. Doing this, they will aid in diffusing lingering incentives to involuntary marriages. Particularly, 

homilies, preachings, workshops, conferences and pastoral letters are apropos. 

 

 
87 Cf. G. Groppo, ‘Orientations in the Study of the Natural Origin of the Society’ in Thomas Solasianum, XI, 1949, pp575ff. 
88 D. Composta, Op.cit, p. 134. 


