The legal principle upon which intestate succession in statutory marriage is predicated is that distribution of the estate should be in accordance with English law because the statutory marriage clothed the parties with a new status different from customary law. This principle used to be contained in the Marriage Ordinance and was given judicial authority in Cole v Cole. The decision in Cole has been followed in a wide variety of cases and the simple requirement for its application has been the intestate death of a person who has contracted a statutory marriage. While Cole involved a single statutory marriage, It has been applied in cases where there were in addition to the statutory marriage, wives and issues of customary marriage. The restriction of right of succession to only the issues of the statutory marriage has resulted in the denial of the valid rights of these other children. This paper sought to achieve two objectives, to wit: to examine the principle laid down in Cole v Cole and analyse the limits of its applications within the context of current legal framework for statutory marriage and administration of estate in Nigeria. It was found that while Cole v Cole remains a valid authority, its peculiar facts make it most appropriate to apply it in cases involving single statutory marriages. Its application in cases where there are other valid customary marriages in addition to the statutory marriage has often resulted in inequitable results. Hence, the advocacy for such cases to be decided using conflict of laws rules. It was therefore recommended that there is need for legislative intervention, which will codify the principles of conflict of laws applicable to intestate succession in multiple marriages and provide a proper context for the application of Cole’s case as judicial authority.
Mohammed-Lawal et al. (Thu,) studied this question.
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