Recognising Customary Marriage in Africa and Civil Marriage Everywhere

By Michael McGuckian S.J.

Millions of Catholics in Africa are excommunicated because they get married according to their local customs. That is an absurd and scandalous situation, and this book sets out to correct it. The problem is found to rest on three mistakes made down the centuries in the Canon Law. There was the introduction of the Pauline Privilege in the twelfth century. Then the introduction of the canonical form of marriage at the Council of Trent. Then the condemnation of civil marriage in the nineteenth century. When these mistakes are corrected, the solution to the problem is easy. The three mistakes are based on theological errors, and alternative positions are presented here. As well as solving the problem of customary marriages, it also solves the problems around mixed marriages between Catholics and Protestants, and the anomalous ‘double marriages,’ civil and religious, in continental Europe

• Language: English
• Publisher: Xlibris US
• Release date: May 4, 2021
• ISBN: 9781664172197

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Copyright © 2021 by Michael McGuckian, S.J.

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Rev. date: 04/28/2021

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CONTENTS

Introduction

Chapter 1     The Problem

Chapter 2     The Emergence and Condemnation of Civil Marriage

Chapter 3     The History of Marriage Jurisdiction

Chapter 4     The Sacramental Quality of all Marriages

Chapter 5     The Validity and Indissolubility of the Marriages of the Members of Other Faiths

Chapter 6     The Pauline Privilege

Chapter 7     Critique of the Pauline Privilege

Chapter 8     The Jurisdiction of Church and State over Marriage

Chapter 9     Joint Jurisdiction Put to the Test of History

Chapter 10   Church and State and the Form of Marriage

Chapter 11   The Condemnation of Civil Marriage Reviewed

Chapter 12   The Solutions

Bibliography

Introduction

I went to Africa in 1995 to teach theology in a diocesan seminary in Malawi. It was then that I came across the issue of the ‘eucharistic famine’ that was caused by the fact that Africans married according to the tribal customs, and these marriages were deemed to be invalid. I set myself to examine the situation to see if a solution could be found. The problem in itself is easily solved, since all that is required is that a customary marriage be recognised to be a valid marriage. So why is that not done? The problem, it turns out, is the fraught relationship of Church and State in general, and in the jurisdiction of marriage matters in particular, and the difficulties go back a long way. There have been efforts made already to solve the problem, the one that came closest was at the Synod of 1967, where the simple solution was proposed, of simply recognising customary marriages. It was given serious consideration and Bishops spoke in favour of the notion, but it was deemed to be impossible because of the condemnation of civil marriage as invalid. It is this condemnation of the civil marriage that is the stumbling block that any effort to effect a change in this matter must surmount, and this book offers a solution to the problem.

It was necessary to go back and examine the foundations of the Church’s theology and law of marriage, to see what, if anything, can be changed to permit an alternative approach to civil marriage. The problem is found to rest on a three mistakes made down the centuries by the Canon Lawyers in the Catholic Church. The first was the introduction of the Pauline Privilege in the twelfth century. The second was the introduction of the canonical form of marriage at the Council of Trent. The third was the condemnation of civil marriage in the nineteenth century. When these mistakes are corrected, the solution to the problem is obvious. All three of these mistakes are found to be based on theological errors, and the correct positions are presented here. As well as solving the problem of customary marriages in Africa, it also solves the irritating problems that arise around mixed marriages between Catholics and Protestants, and the problem of the anomalous ‘double marriages,’ civil and religious, in continental Europe, based on the civil marriage introduced in France after the Revolution.

Chapter One

The Problem

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.¹ 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.’² It has been estimated that at least half and in some places as many as 90% of Catholics are excluded from the sacraments.³ 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.⁴ 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.⁵ It is the basic factor underlying the ecumenical issue of mixed marriages.⁶ The suggestion has been made that, given the series of difficulties associated with it, it is the canonical form itself that is the problem.⁷

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.⁸ 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.⁹ 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.

The discussion of the matter did not really get under way at the Council but it was taken up and dealt with much more thoroughly at the first Synod of Bishops in 1967.¹⁰ The matter was raised specifically in the context of the difficulty the obligatory form creates for mixed marriages and the Bishops were concerned about the large number of such marriages invalid for lack of form. The precise suggestion was:

If it would be possible to abolish the canonical form and use in future the following norm: Catholics are bound by the canonical form for the validity of marriage when they contract with one another, but in cases of marriage with a non-Catholic they are bound by the form only ad liceitatem?¹¹

This proposal was discussed thoroughly and the bishops eventually decided by a substantial majority that the canonical form should be retained.

The real difficulty that emerged in the Synod discussions is that the possibility of lifting the obligation of the canonical form of marriage in order to recognise mixed marriages, or customary marriages, is linked immediately to the issue of civil marriage. If mixed or customary marriages are to be recognised, then, by the same token, civil marriages must also be recognised, and there we are met by a long-standing condemnation of such marriages that was formed during the difficult years of the eighteenth and nineteenth centuries. In a famous judgement, Pope Pius IX condemned the civil marriage as ‘vile and pernicious concubinage,’ and, though the language has been moderated, the condemnation remains in place. The Church saw civil marriage as a great menace to the sanctity of marriage, risking the disappearance of the inalienable rights of this sacrament. She saw it a proof of hostility, hate and persecution and she opposed it as best she could. It continues to be argued that civil marriages deprive marriage of its religious character, reducing it to a simple contract and leading the faithful to a conflict with their conscience and with the Church. Permitting divorce, it is said that it attacks the stability of marriage, destroys the family, and encourages mixed marriages and religious indifference.¹² The issue was most recently dealt with by Pope John Paul II in Familiaris Consortio. There was some discussion of the matter in the run-up to the encyclical but, while the Pope softened the language of the traditional condemnation of civil marriage, he still deemed it unacceptable to the Church. (Familiaris Consortio, § 68.)

It is this traditional condemnation of the civil marriage that is the stumbling block that any effort to effect a change in this matter must surmount. On the surface it appears that the recognition of African customary marriages is a simple enough matter. The necessity of the canonical form for the validity of marriage was legislated for originally by the Council of Trent in 1563 in circumstances that have nothing to do with contemporary Africa and what is to prevent the authorities of the Church changing the regulation in the light of changed circumstances? In fact things are not so simple at all: the matter is not simply a disciplinary matter but it raises issues that go right to the heart of the theology and law of marriage. To understand the situation it is necessary to understand the whole history that has brought us to this point. For the basic question of the Church’s responsibility for the sacrament of marriage is involved. If the necessity of canonical form were removed and customary marriages were recognised, the role of the Church in the control of and responsibility for the sacrament would be affected in a fundamental way, and that cannot be done lightly. We must, therefore, go back and examine the foundations of the Church’s theology and law of marriage, to see what, if anything, can be changed to permit an alternative approach to African marriage. We will find that this problem cannot be solved on its own, but that an alternative approach to the imposition of canonical form in general will be indicated. We will find that changes of perspective are required deep in the theology of marriage itself.

There are fruitful lines suggested by Sobanski in the article referred to above. He sees that the view taken of the civil jurisdiction in marriage matters is crucial, and suggests that a whole new understanding of Church and State and marriage is possible in the new situation created by the Second Vatican Council.¹³ He points out that while the Church cannot renounce the right to define what is necessary for the sacrament, it is difficult to sustain, as the Canon Law still does, that the competence of the State is limited to the purely civil effects, if one understands by these only secondary marriage matters. Indeed, it is difficult to imagine a State whose juridical system does not include the whole marriage domain, since marriage plays such an important role in society, that a State that underestimates it would not be meeting its responsibilities. Marriage is a case of mixed competence and must therefore be dealt with in an appropriately complete way by both Church and State. Today, the State does not concern itself with the sacramentality of marriage nor pretend to interpret the divine law. Nevertheless, its laws touch on questions that often come close to the essence of marriage, and it is difficult to distinguish substantial issues from those that are secondary, since marriage as a community is rooted in the political society, and society passes through the family. According to Sobanski, this situation should be recognised and not side-tracked with the notion of ‘purely civil effects,’ or by viewing obligatory civil marriage as an absolute evil for Catholics. Although the establishment of civil marriage was the result of anti-clerical tendencies, today it does not always have that motivation. Today, the obligatory civil formalities can be considered the means to guarantee the natural right to marry, respecting the exigencies of the common good and the principle of religious freedom.

Now these points of Sobanski were quickly made and seem to be very sound indeed. In fact the solution to be proposed in this book is exactly along the lines suggested. But the solution labours under two serious difficulties, one practical and the other theoretical. The practical difficulty is that, though the Second Vatican Council created a new situation more than thirty years ago, the change in perspectives has not come about. There is no doubt that at the Second Vatican Council important changes occurred affecting the whole area of Church/State relations. Dignitatis humanae and Gaudium et Spes changed the atmosphere completely. And yet in marriage law there has been no corresponding change of any significance at all. The old stand-off in this area continues to hold good; the only change is that now no one seems to care any more. The separation of Church and State in the law of marriage has taken place, but unevenly, and there is a distinct impression of mismatch and disharmony. Basic functions, certain impediments, witnessing, registration, separation, dissolution, annulment, remarriage, are performed by both Church and State, and no clear harmonisation seems possible or even desired at this stage. Apparent peace is based on a complete separation of Church and State in this area, with two completely independent systems, a situation that does not properly reflect the reality that the two domains interpenetrate more closely here than in any other area.

The theoretical difficulty is that Sobanski’s suggested view of the State’s role in marriage goes against the long-standing claim that the Church has exclusive control over marriage. There is no denying that the claim to exclusive control has been made by the Church authorities for a long time now, and like many things in this area has the appearance of an established and unchallengeable doctrine.¹⁴ One canon lawyer has remarked: ‘The Church has proper and exclusive power over marriage between the baptised; … we consider this to be an unquestionable datum, although it is still questioned today.’ But if the Church claims exclusive control and denies any legitimate control over marriage to the civil authorities, it is impossible to find any reasonable cooperative approach of Church and State to the control of marriage, and Sobanksi’s suggestions fail at the first hurdle. We hope to show that this issue is not, in fact, closed. On the surface the two positions seem to be contradictory and irreconcilable, and that has been the presumption to date. There is no doubt that mutually antagonistic claims to exclusive jurisdiction lead to an impasse with no way out. What is required is an approach that recognises independent mutually acceptable claims to jurisdiction. The question is whether the Church’s understanding of the sacramentality of marriage demands a claim to exclusive jurisdiction over the institution, and in order to approach that issue fruitfully it is necessary first of all to review the developments that led to the Church exercising this control and then claiming it as of right.

The struggle between Church and State over marriage has been long and bitter and is still unresolved. It might appear that the struggle is over and the two have gone their separate ways, and to a certain extent that is true. The State’s independent interest is well established and needs no defence. It is the Church that has the problems. The issues involved run deep, and the Church has quite rightly been neuralgic in reaction to wrong-headed proposals in the past. It is proposed here to review the key moments in the history of this question in the theory and practice of the Catholic Church. As we will discover these moments were often moments of high drama, in some cases associated with major turning points in the historical process where emotions were running high, as they do at such times. The animosity that clouded the discussion in many instances is, for the most part, overcome and, with the wisdom of hindsight, it is hoped that a distillation of the truth in all the contributions to the discussion down the centuries can lead to some fundamental principles and conclusions that help to inform the resolution of the problems still outstanding.

What follows is yet another in a long line of efforts to disentangle the jurisdiction of Church and State in this area. It will be impossible to review all the previous efforts. Only as much of the history will be reviewed as is necessary to present the hypothesis and test it against the magisterial interventions in the matter that have been numerous, stretching over four centuries. It is a long story and it cannot all be reviewed. It is just too long. The key test that the hypothesis must pass is to fit harmoniously with the teaching and practice of the Church to date. It must be fundamentally consistent with what was decided at Trent and by the Popes from Pius VI to Leo XIII who bore the heat of the breakdown of the medieval synthesis. Obviously, it is going to be suggested that the magisterial interventions were not perfect. Otherwise there would be no problem to solve. Reacting in legitimate defence of fundamental principles under attack at each stage, the Church authorities, in the heat of the controversy, were not in a position to recognise or grant the part of the opposing point of view that was valid.

There is no doubt that the Second Vatican Council has created a new atmosphere in which such questions can be addressed. With the Declaration on Religious Freedom a fundamental principle was established which undermines the basis of the unitary approach of medieval Christendom. Now the role of the civil authorities must be properly respected by the Church. Gaudium et Spes says:

If by the autonomy of the earthly affairs is meant the gradual discovery, exploitation, and ordering of the laws and values of matter and society, then the demand for autonomy is perfectly in order; it is at once the claim of contemporary humanity and the desire of the creator. (§ 36) … It is of supreme importance, especially in a pluralistic society, to work out a proper vision of the relationship between the political community and the Church. … The political community and the Church are autonomous and independent of each other in their own fields. Nevertheless, both are devoted to the personal vocation of the human being, though under different titles. This service will redound the more effectively to the welfare of all insofar as both institutions practice better cooperation according to the local and prevailing situation. (§ 76)

The effort to be made here is to work out in some detail just what these general principles involve when applied to the law of marriage.

The terrain is much travelled and the landmarks are familiar to all. Basic here is the taking on of civil powers by the Bishops after the collapse of the Western Empire that led to the formation of medieval Christendom. The coalescing of the civil functions in marriage was quite understandable. The Inquisitions, the Crusades, the Papal States and Armies and the whole panoply of papal temporal power are closely linked to this. It is no accident that they all emerged at the same time in the same set of circumstances during the medieval period. The Church was set free, mostly against resistance and at great cost, in all the other areas. She has yet to free herself in marriage matters. The synthesis of Church and State in medieval Europe led to a situation where the responsibility for marrying was considered to be the exclusive preserve of the Christian pastors and in the subsequent centuries as that synthesis broke down, the Church authorities viewed the civil authorities’ reclaiming of their proper role as an usurpation. Now that the break has been made and we are all able to view matters calmly, a new interpretation of what happened can be made.

There is also the story of the debate about jurisdiction over marriage. From the Waldenses in the 12th century, through William of Ockham