Capacity is necessary for many legal processes. How capacity is defined, and the approach of State policy to it, are subjects of immense importance, particularly in light of the inalienable human rights of every person. The thoughts expressed in this chapter engage with the definition of capacity, and the approach of Nigerian jurisprudence in family matters in three core areas: marriage within its orthodox framework, capacity of persons who suffer from disability as a result of illness of the mind; and marriage between persons of the same gender. There are certainly gaps between the Marriage Act, its ancillary legislation and the Matrimonial Causes Act. For purposes of legal structure and theory, there is a need to harmonise the definition of capacity in family and marriage matters. Furthermore, capacity with respect to matters of the mind requires a contemporary appreciation of attitudes to human dignity, and scientific advances with respect to mental illness.

1. CAPACITY

Capacity is a fundamental aspect of experience. Human experience demonstrates that society is governed by, and workable with, capable human beings. It is, therefore, unsurprising that, in almost all legislation and governing charters, a society draws on capacity, defining what its elements or contents are, for each purpose. How capacity is defined, and the approach of State policy to it, are, therefore, subjects of immense importance, particularly in relation to family matters.

Legal capacity refers to an individual’s potential or suitability for undertaking certain actions. These include matters such as an individual’s mental or physical ability, but also matters such as an individual’s age, gender and relationships. With respect to age, legal capacity has seen shifts, but is now usually defined as being attained when a person has reached the age of 18 years. This is based on perceived evidence of an individual’s mental or physical ability to do things, or understand actions taken. However, in Nigeria, legal capacity is not uniformly defined. Capacity to marry, under the Marriage Act, is implied, from its sections 18 and 11, as being the age of 21. 2 The United Nations Convention on the Rights of the Child makes capacity for independent action, or adulthood, the age of 18.