Recognising Customary Marriage in Africa and Civil Marriage Everywhere

At the Special Assembly of the Synod of Bishops for Africa in 1994, Bishop Raphael S. Ndingi Mwana’a Nzeki of Nakuru, Kenya raised the pastoral problem caused by the continued practice of traditional marriage in Africa. He pointed out that many Christian faithful have finalized their marriages according to the African customs of their own tribe, but have not come to the Church for sacramental marriage, even if in principle there is the wish to do this. In the meantime the Church considers them as living in concubinage, because their traditional marriage has no canonical value. The consequence is that they are deprived of the sacraments, which, in the expression of some African priests, leads to a ‘Eucharistic famine’ of many Catholics in the parishes. He made the suggestion that the pastoral solution points towards the possibility of recognizing the traditional marriage as a valid form of marriage among Christians, which would allow one or both partners to have access to the sacraments of the Church. In support of the suggestion he observed that the traditional marriage has full civil and social value in African societies and those who perform it enjoy all the rights and obligations of real spouses in the eyes of the State. Even in the eyes of the Church, the customary marriage of a non-Christian couple who want to be baptized is recognized as a valid marriage and no further marriage is required after their Baptism. It would seem only a small step, therefore, to grant canonical recognition to such a marriage entered into by a Catholic. Explaining the background to the situation, he noted that marriage in Africa, unlike in Western societies, is not a matter of the spouses alone but is rather a covenant between two families that through every marriage creates new links and tends to ensure the stability of the new family. Therefore, the spouses are not as free as they are in other societies to decide about the date and way of their religious marriage. In this social context, it often happens that though one or both of the spouses are practising Catholics, this is not the case of the members of their families who can delay and even oppose a Catholic marriage in the Church. This is why Catholic couples, without any bad will on their part, can find themselves outside the legal norms and thus excluded from communion. It is hard for people to understand that a couple married according to their customs, having children and living faithfully, is still considered by the Church as living in public concubinage. And so it comes about that in the present circumstances there is a clear dichotomy between the cultural rites of marriage recognized by the African societies and the rite of the sacrament. That this problem is serious is widely recognised. Ten years earlier, Cardinal J. Malula had pointed out that ‘Christian marriage is functioning badly in sub-saharan Africa.’ It has been estimated that at least half and in some places as many as 90% of Catholics are excluded from the sacraments. Despite the seriousness of the problem and the weight of the arguments proposed by Bishop Ndingi Mwana'a Nzeki, nothing further was heard of his proposal in the reported discussions or in the final report of the Synod for Africa. On the surface it would seem that there is a strange lack of concern for a serious pastoral problem. However, it needs to be borne in mind that this suggestion by Bishop Ndingi at the Synod for Africa is not the first time problems associated with the canonical form of marriage have been raised. The canonical form of marriage has been a troubled section of the marriage law of the Church for a long time. Since its first introduction by the decree Tametsi of the Council of Trent its application has been difficult and uneven, and so it still remains. And it is not only in Africa, where it creates the pastoral problem of customary marriages of Catholics being deemed invalid and so people being excluded from the sacraments in large numbers. It has also led to anomalies and difficulties with the civil regimes in different countries and still does. It is the basic factor underlying the ecumenical issue of mixed marriages. The suggestion has been made that, given the series of difficulties associated with it, it is the canonical form itself that is the problem. The issue has come up again for discussion a number of times in recent years. The question of the abolition of canonical form and the recognition of marriages contracted according to civil forms arose in some proposals to the Second Vatican Council. The problem experienced is the number of marriages invalid for lack of form, and different solutions were offered, including making the form obligatory ad liceitatem not ad validitatem. However, the proposal to abolish the obligatory form did not make any real progress. In the Aula Cardinal Frings called for the abolition of the form ad validitatem for mixed marriages on 28 November, 1963 and many other Fathers (complures) asked the conciliar Commission to resolve this ‘much discussed’ question. Others suggested that the form should be retained but that the local Ordinary should have power to dispense. Mons. Schneider, Archbishop of Bamberg and relator to the Council, presented this solution as appropriate to guarantee both the validity of the marriage and the necessary contact of the Catholic getting married with the pastor, and Cardinal Ritter approved of this solution. He pointed out that the problem of clandestine marriages is no longer a real problem, but the phenomenon of rushed marriages without guarantee of stability is worrying and can only be contained by fidelity to the canonical form. The only one to request the complete abolition of the form was the Bishop of Osaka, Taguchi, in the name of many Japanese bishops and of some of other nations.