CHILDLESS MARRIAGE IN AFRICA AND INDISSOLUBILITY: A CANONICAL APPRAISAL

CHILDLESS MARRIAGE IN AFRICA AND INDISSOLUBILITY: A CANONICAL APPRAISAL

By Titus Ik. Nnabugwu

Introduction:

For some time now, some African scholars have been agitating that the canonical concept of marriage does not quite correspond to the African concept and that in most places in Africa; the canonical form of marriage is rather superfluous. The church marriage is simply viewed as a blessing of the traditional marriage. Immediately after the traditional marriage, the parties consider themselves married and in most cases resume cohabitation and sexual intimacy. The society mostly considers them married, and does not frown at their cohabitation. Some men even wait till the woman is visibly pregnant before they can talk of approaching the priest for “blessing” or the church marriage. Those who discover that their wives cannot be pregnant after the church marriage find themselves carrying a heavy burden that is at times worsened by the pressures from the society to take a second wife. It is in the light of all these that I shall attempt to look into the Canonical concept of marriage, the African concept of marriage, and then the problem of a childless marriage in Africa in relation to the teaching of the church on indissolubility of marriage.

The canonical concept of marriage:

            Marriage is a natural reality, and the very core of this natural reality is the union of a man and a woman. It is this union that we find in the Bible described in terms of “two becoming one flesh” (Gen. 2:18), a natural institution ordered to partnership and procreation.  The Second Vatican Council described marriage as an intimate partnership of life and love, established by the creator and endowed by him with its proper laws. It is rooted in the contract of its partners, that is, in their irrevocable personal consent[1]. The Latin Code of Canon law, based on the teaching of Vatican II Council, began its exposition on marriage with a theological statement regarding the nature of marriage. In Can. 1055 §1, it states: “The marriage covenant by which a man and a woman establish between themselves a partnership of their whole life, and which of its own very nature is ordered to the well-being of the spouses and to the procreation and upbringing of children, has, between the baptized been raised by Christ to the dignity of a sacrament”.

            The Code makes it clear that the spouses commit themselves to each other by means of an irrevocable covenant. This covenant implies a relationship, which recognises the spiritual quality of the spouses and their capacity to enter into an agreement, which demands the gift of the whole person to one another. Hence the covenant, which has its root and foundation in the free choice of the spouses, involves an interpersonal relationship that is total, involving their spiritual, emotional and physical joining. This is why some people said that the term covenant (foedus) rather than contract is a more accurate theological description of marriage consent, for it refers to a personal commitment, which cannot be revoked[2]. In effect, it is the consent that brings marriage into being. This consent is said to be an act of the will by which a man and a woman, through an irrevocable covenant, mutually give and accept each other in order to establish marriage (Can. 1057 §2).  Marriage, thus understood, implies an acceptance or a relationship ordered to the procreation and education of children and marked by total fidelity and permanence. This is why Can. 1056 states: “The essential properties of marriage are unity and indissolubility, which in Christian marriage obtain a special firmness in virtue of the sacrament”.

The unity of marriage refers to the fact that marriage is a monogamous relationship, that is, between one man and one woman. Accordingly, all forms of polygamy are excluded, whether it is polygyny, where one man has several wives, or polyandry where one woman has several men, or “group marriages” where several men “marry” several women[3]. Such practices run counter “to the plan of God… because it is contrary to the equal personal dignity of man and women who in matrimony give themselves with a love that is total and therefore unique and exclusive”.[4] The indissolubility of marriage on the other hand refers to the fact that every valid marriage cannot be dissolved by the parties themselves or by any human power.[5] These two properties of unity and indissolubility are therefore intrinsic to every marriage. This is so because it is the natural dimension of the union, and more concretely, the nature of man created by God himself that provides the indispensable key for interpreting the essential properties of marriage. The Pope, in his allocution to the Roman Rota said: “Marriage is indissoluble: this property expresses a dimension of its objective being, it is not a mere subjective fact. Consequently, the good of indissolubility is the good of marriage itself; and the lack of understanding of its indissoluble character constitutes the lack of understanding of the essence of marriage. It follows that the “burden” of indissolubility and the limits it entails for human freedom are no other than the reverse side of the coin with regard to the good and the potential inherent in the marital institution as such”[6]. Indissolubility as a property of marriage is therefore not to be considered as an ideal but as a natural law requisite of universal applicability. It only acquires certain firmness for Christians. Consequently, between two Christians who have been configured to Christ through baptism, their marriage assume a different dimension, namely, that of being a sacrament.

            This is why the Church teaches that after the marriage of two baptized persons, if a sexual intercourse, performed in a human way (humano modo), takes place between them, then the marriage in question has become radically indissoluble, both intrinsically and extrinsically. In other words, neither the parties themselves nor an external authority can dissolve the marriage[7]. Hence Can. 1141 states: “A ratified and consummated marriage cannot be dissolved by any human power or for any reason other than death”. In other words, the Church understands marriage as a life commitment, which is to be entered into freely after a mature deliberation and an adequate preparation.

The African concept of Marriage:

            In the African traditional system, marriage has been described as the legalising of a special relationship to which the society gives its approval between a man and a woman. It places each of the partners under legal and social obligations to the other and to the society[8]. In a broader and traditional context, African marriage is not simply an affair between two people, a man and a woman who decided to be husband and wife, but rather a marriage between two families or even between two clans, which even continues after the death of the husband. This communal nature of customary law marriage is based on the African extended family system. Since there are many ethnic and tribal groupings on the African continent, we shall use mostly the Igbo’s of Nigeria as our reference point in our articulation of the African concept of marriage.

            The Bishops of Africa and Madagascar at their SECAM meeting of 1981 at Yaounde, Cameroun stated quite categorically that Marriage in Africa aims at Fecundity[9]. The desire for a child is often an absolute. This is why the purpose of marriage in Igboland was described by Ndulue as business, the business of begetting children. According to him, “Marriage in Igbo culture is business. But it is not business in the economic sense nor is it business of flirting and lovemaking. It is the business of ‘looking for the fruit of the womb’, which are children. Secondly, it is business of bringing two kindreds (ikwu na ibe) or families closer together. For the Igbo, to be without children is to miss ‘immortality’ of some sort. In the same perspective, a childless woman is a monstrosity”[10]. This appears to be the same opinion of Ojemen when he said: “It is safe to say that all Nigerian men and women entering into marriage do so with the intention of having children. Childless couples, sustained by marital love alone over a life time, are rare in this country, and as I stated earlier, most Nigerian men have already pre-planned their course of action in case not enough children are born or no male child appears to carry on the family name… It does not take much time before divorce and/or polygamy sets in”[11]. So for most Africans, the procreative role of the family overshadows every other role of the family. Hence it is said to be a truism that Africans marry in order to raise children and thus perpetuate the family lineage. Fertility is often seen as a participation in the great mystery of life as a force that runs from one generation to the other. It is a question of life and death for the lineage.

            In effect, the concept of marriage for the African is very closely tied to children and fecundity. The aspect of companionship and marriage for the good of the spouses is clearly overshadowed by this dominant interest and concentration on children. This is why it is important to raise the issue of whether the African or Nigerian Christians of today really understand that Christian marriage is a sacrament, and therefore exclusive and perpetual in nature, with or without children.

The Bane of Childless Marriages in Africa:

            Childlessness in marriage is one of the major causes of marital maladjustment and final break down in Africa. Highlighting the issue and how embarrassing it is to the parties concerned, Patience said: “After about three years of marriage, the family members start to bother about the late arrival of a baby in the family. The spouse concerned feel so uncomfortable and will always try to avoid the village people. They feel very reluctant visiting home during festivals like the new yam festival and Christmas/New year celebrations. The woman is always stressed and this could lead to intermittent miscarriages and abortion. Childlessness is an ill wind in the marriage that blows no couple any good”[12].  In the same vane, H. Okeke said: “The value of children in marriage continues to be such a dominant one that the fortunes and fates of many African marriages hang on its fruitfulness”[13]. Talking about the sacrament of marriage and childlessness in Edo, Nigeria, Ibineweka also pointed out the adverse effects of childlessness in African marriages: “And for the African, childlessness is the greatest traumatic experience in marriage. Childlessness of marriage can be the source of personal misery for the couple, the members of their extended families and friends and the community at large. Invariably it leads to polygamy or concubinage, or divorce, or marital infidelity or proxy sexual union[14]. Pope John Paul II in his first historic visit to Nigeria in 1982, while speaking to Christian families in Onitsha, Igboland, acknowledged the bane of childless marriages in Africa in clear and unmitigated terms when he said: “ I know that in your country the childless couple bear a heavy cross, one that has to be borne with courage all through life. To couples who cannot have children of their own I say: You are no less loved by God; your love for each other is complete and fruitful when it is open to others, to the needs of the apostolate, to the needs of the poor, to the needs of orphans, to the needs of the world”[15].          

Childlessness vis-à-vis Indissolubility:

            The crucial question that readily comes to mind as a result of this emphasis on fertility and fruitfulness in African marriages is whether the childless marriages of African baptized Christians are really considered indissoluble by the couples concerned. At the moment of the exchange of consent, are they actually consenting to a Christian marriage with the properties of unity and indissolubility? Is the quality of fertility a condition sine qua non attached by the parties to the marriage? In Europe and North America, because of the increase in divorce, it is now a known fact that the validity of some marriages are challenged under the heading of exclusion of indissolubility as a result of what is referred to as the “divorce/annulment mentality” of one of the parties at the time of the exchange of consent. Cormac Burke made a direct admission of this when he said: “We live in a divorce culture – at least in the West, where people take it for granted that divorce is a solution to a broken down marriage. This mentality undoubtedly favours simulation”[16]. This is why we are asking the question: Is this “fertility mentality” of the African against the indissolubility of marriage? Is it capable of vitiating the consent of the parties on the day of their marriage? I had earlier on maintained that this fertility mentality could amount to an error of quality that is directly and principally intended[17].

            It will definitely be an exaggeration to say that as a result of the premium placed on children by Africans, they enter into marriage excluding its property of indissolubility, should it become childless. It would appear that rather than indissolubility, it is the property of unity that is put even put into question. This is because, it is not uncommon to find African men who, finding themselves in the situation of a childless marriage, do keep their first wives; but then marry other women to bear children for them. When we talk of children, the emphasis is even more on male children. This is because, where a woman gives birth to only female children, the possibility is that the husband will still marry a second wife to give him a male child, who will answer his name and continue his lineage.  In a situation where the man finds himself impotent or sterile, he may prefer that his wife “goes outside” secretly to beget the pregnancy from other men. This is where the problem of conscience comes in for many women who are good Christians and are also “pious”. Many of them come to the Tribunal to say that their only crime was their refusal to give in to such a sinful arrangement by her husband’s family. More often than not, a lot of accusations are made against the woman to push her out and bring in a “more obedient” and “accommodating” woman. This goes to show that for the African, childless marriage remains a very big temptation, even for devout Christians. The issue of legal adoption for childless couples is still considered by many to be quite foreign and a problem to the traditional African mind.

            The Church today acknowledges the social dimension of marriage as well as its character as a contract. But it insists that the heart of marriage lies in its being an inter-personal sexual relationship of life-giving love, and one which is therefore permanent and exclusive. The African Christian must then know that the property of indissolubility is in no way an optional extra, open to the free choice of the couple. It flows from the very nature of the love they are pledging to each other[18]. This is clearly stated by Vatican II: “As a mutual gift of two persons, this intimate union, as well as the good of the children, imposes a total fidelity on the spouses and argues for an unbreakable oneness between them”[19]. John Paul II in his apostolic Exhortation on the Family reaffirmed this: “It is a fundamental duty of the Church to reaffirm strongly, as the synod Fathers did, the doctrine of the indissolubility of marriage. To all those who, in our times, consider it too difficult, or indeed impossible, to be bound to one person for the whole of life, and to those caught up in a culture that rejects the indissolubility of marriage and openly mocks the commitment of the spouses to fidelity, it is necessary to reconfirm the good news of the definitive nature of that conjugal love that has in Christ its foundation and strength”[20].

            What the Vatican Fathers and John Paul II are telling the African baptized Christians who find themselves childless, after many years of married life, is that their predicament should not lead them into forgetting the indissolubility of their marriage. In spite of the heavy cultural pressure and demand on them, they are to remember that by utilizing all their human resources, together with the good will, and by, above all, confiding in the assistance of divine grace, they can and should emerge from their moments of crisis renewed and strengthened. They must always recognize the fact that they are bound to each other forever by a bond that demands a love that is ever renewed, generous and ready for sacrifice[21].

Conclusion:

            In this write up, we tried to highlight the teaching of the Church regarding marriage, as well as the influence of childlessness in African marriages. One thing that stands out very clearly is that African marriage aims at fecundity and that every childless marriage in Africa is a very big cross for the couple concerned. As a result of this premium placed on children, it would appear that the “fertility mentality” is diametrically opposed to the good of indissolubility and that it favours simulation, just like the “divorce mentality” of the West. But then no one will fail to see that this type of mentality can also be a means for doing one’s best to escape from unhappiness, brought about by childlessness or divorce, without escaping from a real and binding and conscious obligation. This is why we advocated that couples in Africa, who find themselves in a childless situation, should not forget that the consent they exchanged on the day of their marriage is irrevocable and for life, and that the good of indissolubility is the good of marriage itself.

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Endnotes

[1] Vatican II Council, Gaudium et spes, no.48

[2] John McAreavey, The Canon Law of Marriage and the Family, Dublin 1997, p.21.

[3] cf. The Canon Law: Letter and Spirit, p.574.

[4] John Paul II, Familiaris Consortio, n.19d.

[5] The natural bond of marriage, that is, marriage between two unbaptized persons, can however be dissolved in certain situations by virtue of “the power of the keys” (Can. 1141 ff).

[6] John Paul II, Allocution to the Roman Rota, Jan. 28, 2002, n.4.

[7] It is important to note that there is a big difference between dissolution of marriage and a declaration of nullity. If a marriage is ratified but not consummated, the Pope or the Supreme Pontiff through his vicarious Power can dissolved such a marriage. But when a ratified marriage is subsequently consummated by sexual intercourse, performed in a human manner, the union becomes absolutely indissoluble, and not even the Pope can dissolve such a marriage. On the other hand, a declaration of nullity means a competent ecclesiastical Tribunal after a judicial investigation, pronouncing a marriage null and void, if there was at the time of the marriage (ab initio) either an impediment, a defect of consent, or a defect of the canonical form of marriage.

[8] Prudence C. Nwobi, Marriage and Family counselling, Enugu, 1997, p.1.

[9] cf. Francisco Urrutia, “The Challenges on Canonical Marriage Arising from Africa” in Studia Canonica,23(1989), p. 14

[10] Christopher C. Ndulue, Womanhood in Igbo Culture, Enugu, 1995, p.58.

[11] Cosmas Ojemen, “Canonical requirements of Matrimonial Consent in the Nigerian Context” in B. Etafo & H. Okeke (eds.), Marriage and the Family in Nigeria, Onitsha 1993, p.36.

[12] Patience Nwobi, Op.cit; p.25.

[13] H.O. Okeke, “From «Domestic Church» to «Family of God»: the African Christian Family in the African Synod” in Neue Zeitschrift für Missionswissenschaft, 52 (1996/3), p.203.

[14] cf. Felix Ibineweka, The Sacrament of Marriage and Childlessness in Edo, Pastoral Problems and Possible Solutions (Rome 1987) p.105-113.

[15] John Paul II, February 13, 1982, “To Christian Families in Onitsha” in L’Osservatore Romano, March-April 1982, p.8.

[16] Cormac Burke, “Simulation of Consent” in W.H. Woestman (ed.), Simulation of Marriage Consent:Doctrine, Jurisprudence, Questionaire, Ottawa 2000, p.22.

[17] cf. Titus Ik. Nnabugwu, “Grounds of Nullity in Canonical Jurisprudence”

A Paper presented at a Seminar on Marriage Tribunals at BORACC, Nkpor October 13-15, 1999.

[18] Cf. Kevin T. Kelly, Divorce and Second Marriage: Facing the Challenge, London 1996, p. 16.

[19] Vatican II, The Church in the Modern World (Gaudium et spes), n.48.

[20] John Paul II, The Christian Family in the Modern World (Familiaris Consortio), n.20.

[21] John Paul II, Allocution to the Roman Rota, January 28, 2002.