84. Failed marriages in the new proposal
84. Failed marriages in the new proposal

84. Failed marriages in the new proposal

Last week, I suggested that a juridical-pastoral approach is opportune to inculturating and incorporating customary marriage into the Church. Today’s post examines failed marriages in the proposal.

A ‘failed marriage’ is not always the proper canonical term because, in cases of invalidity, there was never even a marriage in the first place. Canon law provides that marriage enjoys the favour of the law, and, in doubt, one upholds the validity of marriage until one proves the contrary (Canon 1060). However, I use ‘failed marriages’ because it is a generic term that accommodates every possible situation that concerns the dissolution of the matrimonial bond. While no one prays for failed marriages, it is necessary to reflect also on the possible judicial action when a marriage contracted with the juridical-pastoral proposal fails. I identify the possible judicial action using the four scenarios described last week.  

The first is Church marriage for those who have celebrated customary marriage. This marriage does not require a dispensation or permission from the Ordinary because it follows the current process. When such marriages fail, the judicial process for the declaration of nullity and the separation of spouses (Canon 1692) and the administrative process of dissolution of ratified and non-consummated marriage (Canon 1697) (canonical marriage trials) follow the current canonical procedures.

The second is Church marriage for those who have not married customarily (that is, the bride price has not been paid). Such marriages require the permission of the Ordinary. Since it is simply permission, there is no dispensation from any canonical impediment. The permission also does not dispense from customary law requirements since the ecclesiastical authority is not competent within the customary law legal system. Therefore, when such marriages fail, the canonical trials follow the current canonical procedures. There is a high likelihood that the decision regarding omitting customary marriage will contribute to the proofs during the trial.

The third is marriage for Catholics, who only want a customary marriage. Although canon law speaks of custom, it does not refer to customary law. Instead, it means those customs introduced by a community of the faithful and approved by the competent ecclesiastical authority (Canon 23). It also states that “no custom which is contrary to divine law can obtain the force of law” (Canon 24 §1).

Since ecclesiastical laws are not applicable within the customary legal system, the ecclesiastical authority is not competent regarding this marriage. Therefore, the dispensation is only from the canonical form for the Catholics to enable them to receive communion. Consequently, when such marriages fail, there is no judicial process by the ecclesiastical authority since the marriage was never valid in canon law. However, they need the permission of the local ordinary to contract any future marriage in the Church.

Is there a possibility that people would prefer this option to escape a future marriage crisis easily? While people may have ulterior motives while contracting marriage, arguing only along this line may be an exaggeration. Unlike in Italy (the country that influenced these proposals), couples who have only married civilly in Nigeria do not ordinarily need the local Ordinary’s permission to marry in the Church. In the same way, couples who have married only customarily do not need permission to marry in the Church.

However, this proposal is about marrying only customarily and receiving communion afterwards. I do not know any country where Catholics seek permission or dispensation from the local Ordinary to marry only civilly. The reason is not necessarily about doctrine or law but about compatibility. Why seek dispensation or permission when one can easily marry according to the two systems? Canonical impediments that prevent one from marrying in the Church may not always impede civil marriage.

Therefore, it is inexpedient to compare our need for dispensation from canonical form for customary marriages with those who only have statutory and Church marriage. The contexts differ. 

The fourth is the marriage of those who adopted the juridical plan, that is, the single marriage rite where the marriage contracted is both valid in customary and canon law. Contracting this marriage requires the permission of the local ordinary. It also means that the ecclesiastical authority is fully competent. Therefore, when a marriage contracted in this form fails, the canonical trials follow the current canonical procedures. While the spouses can remarry according to customary and statutory laws, none can remarry in the Church unless the previous marriage has been declared null.  

May God continue to help us🙏🏾


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