THE
INTEGRATION OF THE TRADITIONAL AND CHRISTIAN MARRIAGE RITES IN NIGERIA: UNTYING
THE LEGAL KNOTS
Titus
Ikechukwu Nnabugwu, JCD, BL, LLM
Abstract
The need for
inculturation in the area of marriage has been on the front burner for the
Nigerian Church, especially in Igboland. Many young couples put off the
celebration of the Christian marriage on account of the financial burden
involved in the dual celebration of marriage at two different occasions or
venues. There has been persistent calls to eliminate the dichotomy and
duplication of the current marriage rites. Nigerian Christians would want to
comfortably celebrate their marriage in a culturally relevant ceremony that is
compatible with ecclesiastical discipline and statutory requirements, instead
of celebrating traditional marriage and Christian marriage separately, with all
its attendant negative pastoral consequences. This paper addressed the issues
involved in the quest for this integration from the liturgical, canonical and
civil law perspectives. It first looked into the urgent need to realize the
project and not to continue paying lip service to it, for it actually stands as
a test of the willingness of the Nigerian Church to face the task of being a
local Church. The efforts and contributions already made by liturgists and
canonists were highlighted. The lingering canonical and the statutory challenges
with regard to the canonical form, the place of marriage, and the official
witness at the marriage were then discussed. The futility of advocating that
the eldest man in the family of the bride should be delegated by the Church to
officiate at the traditional marriage ceremony was underscored. The paper
finally recommended the use of the ordinary canonical form of marriage within a
liturgy of the Word at the home of the bride during the traditional marriage
rite, and also the use of a special
license instead of the registrar’s
certificate, in order to ensure the validity of the inculturated marriage rite
under the Act.
Introduction
The
Nigerian Church, following the intendments of the Second Vatican Council and
the call of St. Pope John Paul II during his pastoral visit in 1982 for a New
Era of Evangelization for the Nigeria Church, has been making a lot of effort
at inculturation in order to ensure that Christianity is not perceived as a foreign
religion, a religion that is at variance with the culture and tradition of the
Nigerian people. The Bishops clearly “understood this call to involve, among
other things, effective catechesis, deepening of the faith of the people and Christian
commitment in all spheres of life”[1].
Today in Nigeria, an aspect of deepening
the faith of our people that is still calling for urgent attention is the area
of marriage, especially with regard to harmonizing or integrating the
traditional and Christian marriage rites. The integration, if fully realized,
will eliminate the dichotomy and duplication of marriage rites and allow
Nigerian Christians to celebrate their marriage in a meaningful culturally
relevant ceremony that is compatible with Christian doctrine and discipline.
The urgent need of this integration is clearly expressed in the questions being
asked by many today: Is there no way by which the traditional marriage and the
Christian marriage can be harmonized, so that there is only one marriage rite
that takes care of the exigencies of tradition, the civil society, and the
Church? Is it not possible to arrange the celebration of the traditional
marriage and the Christian marriage in such a way that both go together?[2]
Hence,
it becomes evident that inculturation in the area of marriage prominently stands
as a proof of the willingness and ability of the Church in Nigeria to face the
arduous task of being a local church among Nigerians in their ethnic cultural
diversities.[3] Undoubtedly,
some studies[4]
have been done on this subject but the ultimate goal of an effective integration
that has taken care of all the knotty issues in the area of liturgy, canon law
and civil law, has not yet been achieved. Thus, Bishop Hilary O. Okeke in his
2014 Pastoral letter, still concerned that there is not yet a satisfactory and
acceptable integrated marriage rite, expressed the need for further work by
scholars in order to resolve the remaining canonical and statutory requirements.
He said: “The truth is that attempts to have a marriage rite that effectively
integrates Catholic and traditional marriage rites have not yielded sustainable
result. They have not satisfactorily met the canonical as well as statutory
requirements. The issues of place and time as well as official witness of
marriage have to be resolved to meet with canonical as well as statutory
requirements for the celebration of marriage”[5].
This article is an effort to synthesize the earlier studies made and then contribute
to the untying of the remaining canonical and statutory knots still holding the
practical implementation of the efforts already made by some liturgists and
canonists in this regard. We shall first look at the urgent need for this inculturation
in the area of marriage, then examine the liturgical and canonical issues
involved and finally discuss the civil law or statutory issues in line with the
requirements of the Nigerian Marriage Act and Matrimonial Causes Act.
Inculturation
in the Area of Marriage as an Urgent Necessity
It
has been observed and rightly too that a test of the ability and willingness of
the Catholic Church in Nigeria to face the task of being a local church, the
Church of God in Nigeria, among Nigerians in their ethnic cultural diversities,
is the inculturation of marriage.[6]
Pedro Arupe defined inculturation as the incarnation of Christian life and the
Christian message in a particular cultural context, in such a way that this
experience not only finds through elements proper to the culture in question
but becomes a principle that animates, directs and unifies the culture,
transforming it and making it so as to bring a ‘new creation’[7].
For Nigeria that is very much concerned with the new era of evangelization, inculturation
becomes one of the patterns in which the pluriform character of contemporary
Christianity manifests itself, and even the authentic mark of evangelization.
It represents a second important model of contextualizing theology, since the
Christian faith in effect cannot be said to exist except as “translated” into a
culture.[8]
Hence, for the Christian faith to remain alive, it must be inculturated; it
“must be rethought, reformulated and lived anew in each human culture, and this
must be done in a vital way, in depth and right to the cultures’ roots”[9].
In effect, the issue of contextualization, especially of the inculturation
aspect of marriage, is a great challenge today confronting the Church in
Nigeria. Already, St. Pope John Paul II in his address to the Catholic Bishops
of Nigeria on February15, 1982 said:
Every important
aspect of your own evangelizing role is the whole dimension of the
inculturation of the Gospel into the lives of your people…, you help them ‘to
bring forth from their own living tradition original expression of Christian
life, celebration and thought’.
Given
that inculturation is a process that recognises a culture or cultures as unique
and ever dynamic in nature, the Nigerian Church has an obligation to evolve a
marriage rite that the faithful can readily and culturally identify with. At
the moment in Igboland for instance, the people of God are still left with no
other choice than to celebrate differently the traditional marriage (Igba Nkwu) and the Christian marriage (Igba Akwukwo). The consequence of this
unnecessary duplication is that a couple can be married traditionally for years
before coming to be married in the Church.[10]
The other aspect of the problem is clearly stated by Bishop Hilary Odili Okeke:
“Most Igbo Christians do not understand that the Catholic Church recognises the
traditional marriage as only a preparation and a prerequisite for the real
marriage which is Church marriage. Therefore they do not see anything wrong
with cohabitation and sexual union of the people who have only had traditional
marriage”[11]. In
other words, after the traditional marriage, the pastoral difficulty that is
created is the expectation of everybody that the couple is already married,
with cohabitation and sexual union culturally permitted. But then, until they
wed in the Church, their marriage is considered by the Church as “irregular”
and they are excluded from the sacramental life of the Church[12].
The
fact that many Nigerian Christians can comfortably without any qualms of
conscience marry traditionally and cohabit for many years and with children
before going to wed, if at all, in the Church casts a doubt on whether they themselves
consider the Church wedding as the “real marriage”. This doubt stems from the
fact that many Africans generally are not in a hurry for a church marriage and
some delay the church marriage until they are sure of the fruitfulness of the
marriage. Hence, for Nigerians Christians as Africans, “the concept of marriage
is very closely tied to children and fecundity”.[13]
As a result, it remains an important fact that marriage for Africans including Nigerian
Christians, is the traditional marriage, with the Church marriage regarded as
an appendage and merely conferring it with greater social prestige[14].
On which marriage is the real one for Africans, Archbishop P. Dery confirming
the Ghana experience stated that, “customary marriage, in the minds of most
Ghanaians including Catholics, is the real marriage”[15],
for the ceremony in the Church is seen not as a celebration of marriage but
rather a condition for the reception of sacraments and a simple blessing.
Putting it bluntly, Msgr. C.S. Mba while quoting R. Tremblay said: “For most
Africans, the traditional marriage is regarded as the homely and meaningful
marriage. Any other ceremony is regarded as unpopular, untraditional, costly,
flamboyant and superfluous”.[16]
Hence,
it becomes evident that while for the Catholic Church, the church marriage is
the “real marriage”, in the minds of most Nigerians who marry according to the
traditional rites of marriage, it is the customary marriage that is the “real
marriage”, with all the attendant pastoral consequences. This lucidly portrays the necessity and
urgency of integrating the two marriage rites by way of inculturation. The
problems connected with the realization of this objective are liturgical, canonical
and statutory, and will now be examined seriatim.
The
Liturgical Efforts at Evolving an Inculturated Marriage Rite
Liturgical
law mandates that marriage should normally be celebrated within Mass or with a
liturgy of the Word[17],
and it consists of questioning the parties about their readiness and freedom,
exchange of consent, exchange of wedding ring and nuptial blessings. This
implies that a valid Marriage Rite without the Mass but with a liturgy of the
Word is allowed once the above enumerated essentials are observed. Basil K. Nwazojie,
an eminent liturgist, while articulating the problems of inculturation in the
area of liturgy in the Nigerian Church maintained that the problems attendant
on real purpose-built and effective inculturation are many, but made multiple
by the characteristic of the Nigerian leadership and followership.[18]
For him, the absence of an effective inculturation in the area of liturgy
contributed to the Christian faith of the people remaining intractably shallow
because the preaching and practice of the gospel has not appealed to their
personality, to their authentic self, to their cultural heritage.[19]
It was this expressed and genuine concern that made the Catholic Bishops’
Conference of Nigeria to refer the case of a possible distinctive rite of
marriage to the Liturgical Commission and the Catholic Institute of West Africa
(CIWA), Port Harcourt, for the deep study and adaptation it requires.[20]
The Bishops thus mandated the Nigerian liturgists to produce a rite that the
Nigerian Christians can use to celebrate their marriage, given the reality of
the two elaborate and expensive marriage celebrations presently in vogue among
Nigerian Christians, namely, the traditional marriage and Church marriage. Describing
what the expectation of the Bishops amounts to, Okeke said:
What is needed is
therefore not so much adaptation of the Roman Rite of marriage by selecting
elements of African cultures, and fitting them into this rite but a complete
creation of an African Christian Rite of Marriage, which is fully African in
its genus and cultural expression and fully Christian in its fidelity to the
message of Christ.[21]
In
a bid to respond to this expectation and felt need, some efforts have been made.
The Interdiocesan Liturgical Commission for Igbo Speaking Dioceses proposed an
Igbo Christian Marriage Rite[22].
This proposed rite tried to bring together the customary and Christian marriage
rites using Igba Nkwu[23]
(wine ceremony) as the proper stage to insert the canonical form of marriage demanded
by canon law for the validity of any marriage involving a Catholic party. The
ceremony itself is to take place at the house of the bride and later to be
followed by a thanksgiving Mass in the parish church of the bridegroom. This
proposed rite did not see the light of the day because it did not address the
civil law issues associated with recognizing such a marriage as a statutory
marriage.[24]
C.S.
Mba, a renowned Canonist, in his bid to offer a concrete solution equally made
some proposals that tried to incorporate the canonico-traditonal constitutive
element of the marriage rite. After examining the essential requirements for a
valid customary marriage[25],
Mba proposed what he called “A specimen of the Igbo Christian rite of Marriage”.
This specimen is as follows:
1.
The
preliminaries such as the inquiries, marriage negotiation, preliminary consent
and so forth must be completed first.
2.
Then
the settlement of the bridal wealth must take its course.
3.
Next
follows the banns of marriage, etc.
4.
Then
come the civil notification of impending marriage and the pre-marriage
instruction which must be seriously carried out for a good length of time.
5.
The
assembling of the parties at the home of the girl’s parents on a fixed day with
the eldest member of the family presiding and carrying out his function as both
traditional elder and also the Church representative if he is appointed to do
so.
6.
The
priest in charge is present to support the occasion. As a representative of the
Church, he shall formally ask and receive the verbal consent of the parties but
only after the elder has done his own part to a finish. He then invites the
priest who has come with the Catechist and the official witness of the
marriage, to do his part. This part can be modified.
7.
Then
follow the payment of the bridal wealth if any and the formal handing over of
the bride.
8.
Then
the dowry (not the bride price) is presented to the couple by the girl’s father
and the extended family members. This is called “Idu Uno” (leading the bride
home), and consists in household equipments especially for the woman.
9.
After
the presentation, feasting and merry-making will then follow. At this juncture
the ceremony of “Igba Nkwu” can feature or somewhere along the line.
10.
As
soon as possible (and if possible within the following few days) the couple and
their supporters should go to the church for Mass and the nuptial blessing.[26]
It is important to
observe that Mba really made significant contributions in the quest to evolve
an inculturated marriage rite. He developed the aspect of “the place of
marriage” with regard to celebrating the Marriage Rite at the home of the
bride. He equally stressed the importance of the presence of the parish priest
at the ceremony as an official representative of the Church, who is to ask and
receive the verbal consent of the parties, after the eldest man in the family
has performed his own part. He did not include the Mass as part of the ceremony.
Though an integral part, the Mass for him is not an essential element of the
marriage. However, he suggested that since Christian marriage is a faith-event,
there is need to incorporate into the ceremony bible reading, words of
admonition and encouragement, goodwill gestures and prayers from both sides and
the priest.
In an epilogue to
this model proposed by C.S. Mba, Hilary Odili Okeke in his capacity then, as
the president of Canon Law Society of Nigeria requested the Bishops of the Igbo
speaking dioceses to mandate a study of the proposed Christian Marriage Rite at
the community, parish and diocesan levels[27].
It was not evident that this study and discussion took place at those various
levels.
Patrick C. Chibuko,
an eminent liturgist and lecturer in Sacred Liturgy at CIWA, later in 1999 came
out with another proposed Rite for study and celebration, where he integrated
the verbal consent of the parties to be received by the parish priest and the
non-verbal consent aspect to be performed by the eldest man in the family[28].
In a general layout of the celebration, which he proposed to take place within
Mass, and at the home of the bride, with a duration of about two hours, Chibuko
outlined the Marriage Rite in this Order:
Rite of Reception
and Liturgy of the Word
Introductory
Rite and Invocation of the Holy Spirit
Sign
of the Cross
Greetings
Rite
of Blessing Kola nuts
Presentation
of the bride and bridegroom
Liturgy
of the Word
Actual Marriage
Rite
Brief
Introduction
Admonition
by the representatives of the two families
Interrogations
Exchange
of Consent
Non-verbal
exchange of consent
Verbal
expression of consent – Ring
Gloria
(or alternative jubilant hymn familiar in the locality)
Prayer
of the faithful
Offertory
Eucharistic
Celebration Prayer
Prayer
over gifts
Preface
Eucharistic
prayer
The
Our Father Nuptial blessing
Concluding Rite
Bridal
dance
Post
communion prayer
Solemn
blessings[29]
A closer look at
the proposal by Chibuko reveals that his major contribution is the effort to
integrate the rite of blessing and eating of kola nuts and the exchange of
consent - the non-verbal and verbal expression, into the Mass. He gave the
eldest person the role of saying the prayer over the kola nuts invoking the ancestors.
After it is broken and eaten, the Church minister then concludes with a prayer
recalling and incorporating the intentions raised at the breaking of the kola
nuts as the presidential opening prayer for the celebration. Again, for the non-verbal
expression of consent, the bride takes a glass of wine from her father, sips
it, walks straight to the bridegroom and with both hands, hands over the glass
of wine to him without a word, who then receives and drinks the wine with a
gesture of gratitude by nodding. Equally, he did a lot to compose the
liturgical prayers, adapting the demands of the liturgical norms on marriage to
the culture of the people, all in one ceremony and within Mass.
A critique of the
reception of the verbal and non-verbal consent of the parties by two different
people at the same ceremony has been made. It was observed that since it is the
prerogative of the oldest man (Okpala)
in the bride’s family to ask for and receive the bride’s consent - the non-verbal
consent, and that of parish priest to ask for and receive the consent of the
spouses in the name of the Church– the verbal consent, it would appear that a
parallel celebration is going on in the home of the bride. According to Okeke,
“The way out may be for the Church to delegate the Okpala to perform the ecclesial function as well as the traditional
one even when priests and deacons are present. This will require a derogation
from the norms of canon 1112, §2”[30].
These are some of
the grey areas that are still to be clarified so as to have an acceptable harmonized
marriage rite. Suffice it to say that any inculturated rite where only the
customary rite without more, is accepted by the church as a valid Christian
marriage, especially where the role of the parish priest, or a priest or deacon
delegated by him, to assist at the marriage is absent, may give rise to a
problem of the people accepting such a marriage ceremony as one that actually
brings into existence the indissoluble union which the Church wedding does.[31]
The insertion of the
rite of blessing and eating kola nuts and that of non-verbal of consent, which
entails eating of the kola and drinking of palm wine within Mass, seems to
create some difficulty. It is submitted that this insertion within Mass at
every traditional marriage ceremony will have a negative effect as a result of
the ecclesiastical discipline about the observance of the Eucharistic fast,
which all Catholics including the bride and bridegroom are supposed to keep[32].
Hence, the insertion of the essential liturgical norm requirements into a
liturgy of the Word within the traditional marriage ceremony at the home of the
bride by the priest appears more suitable. In other words, what is being proposed
in the inculturated rite is a situation where using the liturgy of the Word, the
traditional or customary marriage rite itself, in the presence of the parish priest
or priest delegated by him, is recognized as a valid marriage by both the
Church and the State. This definitely calls for the surmounting of some canonical
and statutory huddles, which have not been adequately addressed by Chibuko.
Canonical
Challenges to Evolving an Inculturated Marriage Rite
The 1983 Code of
Canon Law in Can. 1120 gives the Episcopal Conferences the faculty to prepare
their own liturgical rite of marriage, which should not only agree with the
local usages but must include the canonical form of marriage. It states:
The
Bishops Conference can draw up its own rite of marriage, to be reviewed by the
Holy See, in keeping with the usages of the place and people, adapting these to
the christian spirit; however the law must be observed which requires that the
person assisting at the marriage, being present, is to ask for and receive the
expression of the contracting parties’ consent.
In effect, the legal
manifestation of the consent of the parties has to take cognizance of the difference
between the liturgical form and the canonical form. The import of this canon is
that there is one element which cannot be omitted or substantially altered with
regard to the expression of consent of the contracting parties, not minding
whatever form the local rite of marriage takes. This is the role of the one who
assists at the marriage as the qualified witness[33].
Canons 1057, 1108 to 1123 prescribe some norms which have to be fulfilled for
the valid manifestation of marital consent, which must be mutual, external,
free, between persons determined juridically capable and regularly to be
expressed by words of the present tense before the local ordinary or parish
priest or lawfully delegated, in the presence of two witnesses.[34]
Prescribing the canonical form of marriage, can. 1108 states:
§1
Only those marriages are valid which are contracted in the presence of the
local ordinary or parish priest or deacon delegated by either of them, who, in
the presence of the two witnesses, assists, in accordance however with the
rules set out in the following canons, and without prejudice to the exceptions
mentioned in can. 144, 1112 §1, 1116 and 1127 §§1-2.
§2
Only that person who, being present, asks the contracting parties to manifest
their consent and in the name of the Church receives it, is understood to
assist at a marriage.
The canonical form
of marriage dates back to 1563 when the Tridentine decree of Tametsi, in a bid to check the problem
of clandestine marriages and the abuses that accompanied them, made it
mandatory under the pain of nullity for marriages to be celebrated before the
proper pastor of at least one of the parties or another priest delegated by
him. The Holy See modified the Tridentine decree with Ne temere of August 7, 1909 and made territorial boundary the basis
for valid assistance. The substance of this norm is the active presence of a
qualified person and two non-qualified witnesses in the ordinary situation in
which a catholic is involved for the marriage to be valid. Hence, the qualified
person can be the local ordinary, the parish priest or a deacon delegated by
either of them. While admitting the importance of the canonical form in order
to ensure the juridicity of the celebration, Okeke argued that from the point
of the original intention of the legislator, that is, to check clandestine
marriages, there is no need to apply the canonical form to African marriages
since no African marriage can be contracted in a clandestine way[35].
This was why he boldly advocated for a delegation of the Okpala as a qualified witness to perform the ecclesial function as
well as the traditional one even when priests and deacons are present.
Actually, a lay
person can be delegated by the diocesan Bishop to act as a qualified assistant
at a marriage but under certain conditions stipulated in can. 1112. Before the
diocesan Bishop can delegate a lay person, it has to be verified that there are
neither priests nor deacons available, and the Bishops’ Conference must have
given its prior approval for such a delegation, and the permission of the
Apostolic See has been obtained. It is therefore submitted that the diocesan
Bishop cannot arbitrarily dispense with this universal law by delegating lay
people such as the Okpala to
officially assist at a traditional marriage rite as a qualified witness and
receive the consent of the parties in the name of the Church when the priests
and deacons are readily available. This is why Okeke rightly indicated that
such a delegation will require a derogation from the norms of canon 1112, §2.
It is to avoid the difficulty of the Nigerian Bishops having to ask for a derogation
from the universal law that Mba proposed the physical presence of the priest or
deacon at the traditional marriage ceremony to maintain the Church’s formal or
special presence.[36]
It is therefore submitted that for any inculturated marriage rite to be easily
and readily acceptable as having fulfilled the essential canonical requirement,
it must include the role of the parish priest, or a priest or deacon delegated
by him and then two witnesses to take care of the canonical form of marriage.[37]
Again, advocating for the extraordinary canonical form according to the
intendment of can. 1116 which allows for the valid and lawful celebration of a
true marriage in the presence of witnesses only, under certain conditions, does
not appear plausible.
Another aspect
that calls for consideration is the place of the celebration of the marriage.
Canon 1118 states that a marriage between Catholics or between a Catholic party
and a baptized non-Catholic, is to be celebrated in the parish Church, but that
the local ordinary can allow a marriage to be celebrated in another suitable
place. This suitable place can no doubt be the home of the parties. The Roman
Rite dealing with the right to prepare a completely new rite clearly made a
concession about the place of the celebration:
Among
peoples where the marriage ceremonies customarily take place in the home, sometimes
over a period of several days, these customs should be adapted to the Christian
spirit and to the liturgy. In such cases the conference of bishops, according
to the pastoral needs of the people, may allow the sacramental rite to be
celebrated in the home.[38]
From the above
directive, it becomes evident that both the diocesan Bishop for his own diocese
and the Bishops’ Conference of Nigeria for the whole Nation have already the
power to allow the Marriage Rite to be celebrated in the home of the bride. In
other words, the issue of the place of
the celebration from the point of view of what is practical and workable
will certainly be and remain the home of the bride. This stems from the fact
that in various communities in Nigeria, particularly Igboland, the traditional
marriage ceremony (Igba Nkwu) is
usually done at the home of the bride.
An important
question that must be addressed in connection with the place of the celebration
of the marriage is this: which parish priest is to assist at the traditional
marriage rite and receive the verbal consent of the parties in the name of the
Church at the home of the bride: that of the bride or that of the bridegroom?
It is submitted that where both parties are from the same diocese, any of the
parish priests, that of the bride and that of the bridegroom, can be approached
to officiate at the ceremony and make the necessary entries and documentations
in the marriage book according to diocesan directives and regulations. They can
also delegate another priest or deacon to assist at the marriage. But then,
where the parties are from different dioceses, the onus will fall on the parish
priest of the bride to assist at the marriage. This will prevent a situation
where a parish priest of a bridegroom would have to travel a very far distance
from one diocese to another in order to assist at a marriage in the home of the
bride.
Further, it is
pertinent to state that the due observance of the liturgical norms and the canonical
form of marriage in the proposed inculturated marriage rite would not without
more, take care of the statutory requirements for such a marriage to be
recognized under the Nigerian Marriage Act.
The Statutory
Challenges to the Inculturated Marriage Rite
In order to
appreciate the statutory challenges connected with evolving an inculturated marriage
rite that would be recognized in Nigeria by both the Church and State, it is important
to briefly examine the constituents of a valid statutory marriage according the
Marriage Act and Matrimonial Causes Act. The Marriage Act lays down certain
preliminary formalities, which are to be fulfilled before the solemnisation of
marriage under the statute. These preliminaries to a statutory marriage are
legal essentials, the non-compliance of which will invalidate the marriage.[39]
The parties to a statutory marriage under the pain of nullity must possess the
necessary capacity, have the requisite consent and observe the form for the
celebration of the marriage.[40]
They parties are deemed to have the capacity to marry if they satisfy the
Registrar that:
(i)
Either
of them has been resident within the district in which the marriage is intended
to be celebrated at least fifteen day preceding the granting of the
certificate.
(ii)
Each
of them (not being a widow or widower) is twenty one years old, or that if he
or she is under that age, a written consent of the father or mother or the
guardian – where both the parents are dead, of unsound mind or absent from
Nigeria - has been obtained and attached to the affidavit;
(iii)
There is not any impediment of kindred or
affinity or any lawful hindrance to the marriage;
(iv)
Neither of them is married by native law and
custom to any person other the person with whom the Act marriage is proposed to
be contracted.[41]
The Matrimonial
Causes Act, enumerating the grounds rendering a marriage void, further states
that the marriage is not valid where - either of the parties is, at the time of
the marriage, lawfully married to some other person; the parties were within
the prohibited degrees of consanguinity or affinity; the marriage is not valid under
the law of the place where the marriage takes place, by reason of a failure to
comply with the requirements of the law of that place with respect to the form
of solemnisation of marriages; the consent of either of the parties is not a
real consent because it was obtained by duress or fraud, or that party is
mistaken as to the identity of the other party, or as to the nature of the
ceremony performed, or that party is mentally incapable of understanding the
nature of the marriage contract.[42]
A clear
understanding of the form required by the Marriage Act for a marriage
celebrated under it is important, in view of integrating it to the traditional
and Christian marriage rites. The first step for parties who desire to marry
under the Marriage Act is to complete and sign a notice of marriage in the
prescribed form[43],
which may be done by either of the two parties. The Registrar, after 21 days and up to 3
months from the date of the notice, on the payment of the prescribed fee, may
issue his certificate to the applicant(s) once he is satisfied by affidavit of
the requirements of Section 11(1) of the Marriage Act. The registrar’s
certificate authorizes the marriage to take place within three months of the
date of the notice. On the receipt of the certificate, the parties have the
option to be married before a Registrar or in a church which is licensed for
the celebration of marriages between the hours of 8.00am and 6.00pm in the
presence of two or more witnesses besides the officiating minister[44].
A critical examination of the import of the
Registrar’s certificate[45]
and the strict demands of the Marriage Act[46]
show that the marriage of the parties to a statutory marriage must ordinarily be
celebrated i) in a licensed place of worship, ii) by a recognized minister of
the Church, denomination or body to which such place of worship belongs, iii)
with open doors between 8.00am and 6.00pm, iv) in the presence of at least two
witnesses beside the officiating priest, v) according to the rites or usages of
marriage observed in such church.
Hence,
a marriage performed by a person who is not a recognized minister of the
religious organization is void, and it is mandatory that he should not
solemnize a marriage until the parties thereto deliver to him the registrar’s
certificate or a special license. Moreover, he must not celebrate any marriage
except in a licensed place or worship, or other place mentioned in a special
license. It is important to state that immediately after the celebration of any
marriage, the officiating minister is required to complete the marriage
certificate in duplicate, which are to be signed by the officiating minister
himself, the parties, and two or more witnesses to the marriage. The priest is
then obliged to hand over one copy of the certificate to the parties and
transmit the other within seven days, to the registrar of marriages for the
district in which the marriage took place.[47]
There
is a statutory punishment for unlawfully performing the marriage ceremony. The
Marriage Act provides that whoever performs or witnesses as a marriage officer
the ceremony of marriage, knowing that he is not duly qualified to do so, or
that any of the matters required by law for the validity of such marriage has
not happened or been performed, so that the marriage is void or unlawful on any
ground, shall be liable to imprisonment for five years.[48]
Again, the wilful neglect of the duty to fill up the certificate of the
marriage celebrated, or the counterfoil thereof, or to transmit same to the
registrar of marriages, makes the minister of religion liable to imprisonment
for two years.[49]
With regard to
evolving an inculturated Marriage Rite that will be customarily acceptable,
canonically sound and statutorily valid, it becomes evident that the use of the
Registrar’s certificate would be quite problematic. Once the Registrar’s
certificate is received, one has no other option than to comply with the
conditions therein. This is why the use of a special licence is hereby proposed and strongly advocated for, as
an alternative to the Registrar’s certificate, and as a way out of the
statutory huddle in the way of evolving an inculturated Nigerian Marriage Rite.
What then is this special license? The Marriage Act makes provision for the
special licence to marry thus:
The
Minister upon proof being made to him by affidavit that there is no lawful
impediment to the proposed marriage, and that the necessary consent, if any, to
such marriage has been obtained, may, if he shall think fit, dispense with the
giving of notice, and with the issue of the certificate of the registrar, and
may grant his licence, which shall according to Form D in the First Schedule,
authorising the celebration of a marriage between the parties named in such
licence by a registrar, or by a recognised minister of some religious
denomination or body.[50]
This means that
the procedure of notice of marriage and the Registrar’s certificate may be
circumvented by obtaining a special license from the Governor of the State,
referred above as “the Minister”. The Governor has a discretion to grant the
special license once there is an affidavit showing that there is no lawful
impediment of consanguinity or affinity, and that the necessary consent to such
a marriage has been obtained where the parties are under twenty one years of
age. The characteristic feature of this special licence is that it “may
authorize the celebration of marriage at a place other than a licensed place of
worship or the office of a registrar of marriages but the marriage must be
celebrated by a minister of religion or a registrar”.[51]
The special license states as follows:
Whereas
A.B and C.D desire to intermarry, and sufficient cause has been shown to me why
the preliminaries required by the Marriage Act should be dispensed with:
Now,
therefore, in pursuance of the said Act, I do dispense with the giving of
notice and the issue of the certificate thereby prescribed, and do hereby
authorize any registrars of marriages, or recognised minister of same religious
denomination or body, to celebrate marriage between the said A.B and C.D at
(place of celebration), between the hours of 8 o’clock in the forenoon and 6
o’clock in the afternoon, and within……. days from the date thereof.
Given
under my hand, this….day of……20…
(Signed)…………………[52]
Minister
Given the
characteristic feature of this special license, the Governor can legitimately
authorise the celebration of the marriage of the parties at the home of the
bride and not in a licensed place of worship or the office of the registrar of
marriages. But then, it is evident that the Governor cannot dispense from the
requirement that the marriage must be celebrated by either a registrar of
marriages or a recognised minister of religion. This is a sensitive and
important issue with regard to evolving an inculturated marriage rite that will
be statutorily valid. It means that the Okpala
or the eldest man in the family of the bride cannot be delegated to officiate
as the minister of the marriage if the traditional marriage rite is to have a
statutory validity. In effect, those advocating that in the inculturated rite
of marriage, “the oldest man from the family of the bride will ask for and
receive the consent as in the customary marriage while the representatives of
the church community will be passive witnesses... [since] it is the natural
reality of their marriage that has been raised to the dignity of the sacrament”[53],
will from the foregoing see that the use of such a “minister” is statutorily
invalid.
Hence, while the role
of the Okpala or the eldest man in
the family of the bride is customarily crucial for any meaningful traditional
marriage, this role must be discharged or played independently from the role to
be played by the parish priest or priest or deacon delegated by him as demanded
by canon law or civil law. This will definitely give credence to the need and possibility
of taking place, in the same ceremony, both the verbal consent demanded by
canon law and civil law, to be asked for and received by the officiating
minister of religion, and the non-verbal aspect of the consent of the parties
using the cup of wine to be performed by the eldest man from the family of the
bride. However, care must be taken to see that the essential elements of a
valid customary or traditional marriage are in no way compromised, which
Chibuko masterly tried to incorporate in his own proposal for study and
celebration.[54]
Conclusion
We have examined
the problems associated with evolving an inculturated marriage rite that would
integrate the traditional marriage rite and the Christian marriage rite in
Nigeria within one ceremony. The problems are liturgical, canonical and
statutory. We looked at the urgency of not continuing to pay lip service to
inculturation in this crucial area of marriage, evident in the people of God still
celebrating parallel marriage ceremonies with its attendant negative pastoral
consequences. We highlighted the contributions already made by eminent scholars,
liturgists and canonists. We indicated that in spite of these contributions
already made, some legal knots, especially canonical and statutory knots, still
remained untied.
The
issue of the place of marriage in view of the statutory requirement that for
validity, every marriage must be celebrated in a recognized place of worship,
was addressed. We saw that the usual registrar’s certificate that is obtained
before every Christian marriage to ensure compliance with the Marriage Act cannot
be used if the marriage is to be celebrated in the home of the bride and not in
a Catholic Church, duly licensed for marriages. The use of special licence in place of the registrar’s
certificate for the inculturated or integrated rite was highlighted as it
has the special feature that it can authorize a marriage to be celebrated in
any other place outside a registered place of worship, which can include the
home of the bride.
The issue of the
qualified witness of the marriage was also looked into. With the statutory
requirement that every marriage, authorized by either the registrar’s
certificate or a special license, must be celebrated before a registrar of
marriages or recognised minister of some religious denomination or body, the
futility of the earlier proposals to delegate the Okpala or the eldest man from the family of the bride, or any other
lay man at all, to formally officiate and receive the consent of the parties,
becomes evident. In other words, any other lay man apart from the registrar of
marriages, cannot validly officiate a statutory marriage.
Hence, there would be no need for the
extraordinary canonical form of marriage which would necessitate a dispensation
or derogation from the universal law. The ordinary canonical form in view of
the statutory demands must necessarily be observed. This can be conveniently
inserted into the inculturated marriage rite with a liturgy of the Word by the
parish priest or priest or deacon delegated by him, and accompanied with the
nuptial blessing, once the special license permitting the marriage in the home
of the bride has been obtained. This arrangement would most likely be supported
by many dioceses of Nigeria, provided it was preceded by sufficient and proper
catechesis.
Therefore, it is recommended
that for any proposed marriage rite to adequately integrate the traditional and
Christian marriage rites in Nigeria, it should incorporate the following:
i)
The
parties to the marriage to obtain a special
licence instead of the registrar’s certificate, which must indicate the
home of the bride as the place of marriage.
ii)
The
ordinary canonical form of marriage to be used, such that it is the parish
priest or a priest or deacon delegated by him, who is to ask for and receive
the verbal consent of the parties, to ensure statutory validity of the marriage.
iii)
A
liturgy of the Word with nuptial blessing, and not the Mass, to be adequately incorporated
into the traditional marriage ceremony, to ensure the observance of the
liturgical norms.
iv)
The
customary role of the eldest man in the family of the bride with regard to the payment
of the dowry or bride price and the expression of non-verbal consent of the
parties to be respected, to ensure the observance of the essential elements of
a traditional marriage and its validity.
There
is no doubt that if the above recommendations are fully incorporated into the
inculturated marriage rite, the liturgical, canonical and statutory huddles still
militating against evolving a satisfactory integrated Nigerian Marriage Rite must
have been overcome, and its approval by the Nigerian Bishops and subsequently the
Apostolic See, will be forthcoming.
[1]
Proceedings of the Catholic Bishop’s Study Session November, 1988, Inculturation in Nigeria, 1. The
Catholic Bishops’ Conference of Nigeria held an epoch making Seminar on
Inculturation in Nigeria from November 9-10, 1988 at Sacred Heart pastoral
Centre, Jos.
[2] Titus Nnabugwu, “Contemporary
Challenges of Christian Marriage for our People”, Synod Acta: Living the faith in the family of God on Mission in
Catholic Diocese of Nnewi, (Nnewi: Cathcam, 2006), 191.
[3] Hilary
O. Okeke, “Epilogue” in C.S. Mba, Evolving
an Igbo Christian Rite of Marriage- A Reflection of Can. 1120, (1994),30
[4] See Basil K. Nwazojie, Indigenization of the Liturgy in Igbo
Traditional Marriage Customs, (Unpublished doctoral Thesis, PIL, (Rome:
1976), 114-119; Hilary O. Okeke, “Inculturation of the Catholic Rite of
Marriage for Nigeria”, A paper delivered at the Third CIWA Theology Week, May
1992, Port Harcourt, Nigeria; John Osom, “Practical Aspects of Marriage
Inculturation in Nigeria”, Third CIWA Theology Week Lectures, May 1992; C.S. Mba, Evolving
an Igbo Christian Rite of Marriage- A Reflection of Can. 1120, (1994);
Nathaniel I. Ndiokwere, The African
Church, Today and Tomorrow ( Vol. II): Inculturation in Practice, (Enugu:
Snaap Press Ltd, 1994), 131-148; Hilary O. Okeke, “Inculturation in Nigeria:
Towards Igbo Christian Marriage”, in Neu
Zeitschrift für Missionswissenschaft, 51(1995); Hilary O. Okeke, “Christian
Celebration of Marriage in Africa Revisited”,
Ius Ecclesiae 7(1995): 627-641; Patrick C. Chibuko, Traditional Marriage and Church Wedding in One Ceremony, (Enugu:
Snap Press Ltd., 1999).
[5] Hilary O. Okeke, Marriage and the Family in the Light of
Faith, nos. 35-36 (Nnewi: Cathcom Press, 2014), 40.
[6] Hilary O. Okeke, “Epilogue” in
C.S. Mba, Evolving an Igbo Christian Rite
of Marriage, 30.
[7] P. Arupe, “Letter to the Whole
Society on Inculturation”, no. 7, p.9. Quoted in S. Iniobong Udoidem, Pope John Paul II on Inculturation: Theory
and Practice (Maryland: 1996), 5
[8] David J. Bosch, Transforming Mission: Paradigm Shifts in
Theology of Mission, (New York: 1992), 447.
[9] Ibid.
[10] Titus Ik. Nnabugwu, “Marriage and
Family vis-Ã - vis Evangelization in Onitsha Archdiocese Today”, Synod Acta: Evangelization in Onitsha
Archdiocese Today (Onitsha: Snaap Press Ltd, 2006), 125.
[11] Hilary O. Okeke, Marriage and the Family in the Light of
Faith, 39.
[12] Stephen N. Ezeanya, Instructions on the Question of Irregular
Marriages and Relate Problems in the Archdiocese of Onitsha, (Onitsha:
1987), 8-9.
[13] Titus Ik. Nnabugwu, “Childless
Marriage in Africa and Indissolubility” in Hilary C. Achunike (ed), Evangelization in the third Millennium: A
Contemporary Analysis, (Onitsha: Africana-Fep, 2002), 197.
[14]B. Kissembo, L. Magesa and A.
Shorter, African Christian Marriage,
(London and Dublin: Geoffrey Chapman, 1977), 13-14; see also Hilary Odili Okeke, “Inculturation in
Nigeria: Towards Igbo Christian Marriage”, 13
[15] P. Dery, New People Magazine, (1991), 11.
[16] C.S. Mba, Evolving an Igbo Christian Rite of Marriage, 18. See also R. Tremblay,
“Customary Marriage and Valid Marriages” in AFER,
no. 3(1982):146.
[17] Annibale Bugnini, The Reform of Liturgy 1948-1975
(Collegeville: Liturgical Press, 1990), 697.
[18] Basil K. Nwazojie, “The Nigerian
Hierarchy and Liturgical Inculturation in the Nigerian Church”, in Inculturation in Nigeria: Proceedings of the
Catholic Bishops’ Study Session November 1988, 70.
[19] Ibid, 66.
[20] Catholic Bishops’ Conference of
Nigeria, Particular Complementary Norms to the Revised Code (Onitsha: 1985),
36.
[21] Hilary Odili Okeke, “Inculturation
of the Catholic Rite of Marriage for Nigeria”, 4.
[22] The Interdiocesan Liturgical
Commission for Igbo Speaking Dioceses (IDLC-ISA), “Inculturation and Igbo
Marriage Rite” in The Leader,
February 18, 1990.
[23] It has been observed and rightly
too that the Igba Nkwu ceremony is
not universal in Igboland and that for some communities, it is not absolutely
necessary before the man can take his wife home as a wife. (See Nathaniel
Ndiokwere, The African Church, Today and
Tomorrow, 132). However, it is a well-established principle of customary law in
Nigeria that the payment of bride price is an essential ingredient of a valid
customary law marriage. This rite may be done as part of Igba Nkwu, but in
general, it requires a visitation to the bride’s family. Actually, the bride price initiates
the marriage and grants the man the right over any child born by the woman as
long as it is not refunded to the husband. For the fact that culture is
dynamic, the igba nkwu ceremony which
has presently gained ground in many
communities, especially Igboland, can be taken as the stage to insert the canonical
form necessary for a valid Christian marriage, for it is
the final ceremony to consummate the marriage, and it takes place in the
bride’s family compound.
[24] Every canonical marriage is
supposed to be celebrated in line with the civil law. Hence, Can. 1071 §1, 2o
states that “Except in a case of
necessity, no one is to assist without the permission of the local ordinary at
… a marriage which cannot be recognised by civil law or celebrated in
accordance with it”.
[25]C.S. Mba, Evolving an Igbo Christian Rite of Marriage, 9. He outlined the common and essential
requirements for a valid customary marriage in Igboland as follows: i) The
marital consent especially of the elders as well as that of the parties
themselves. ii) The legal capacity to marry. iii) The ‘Bride Price’. iv)The Igba Nkwu Nwanyi, with the solemn and
formal hand over of the bride.
[26] C.S. Mba, Evolving an Igbo Christian Rite of Marriage, 24.
[27] Ibid, 31.
[28] Patrick C. Chibuko, Traditional Marriage and Church Wedding in
One Ceremony, (Enugu: Snaap Press Ltd, 1999).
[30] Hilary O. Okeke, “Christian
Celebration of Marriage in Africa Revisited”, 641.
[31] Francesco Urrutia, “The Challenges
on Canonical Doctrine on Marriage Arising from Africa” in Studia Canonica 23(1989), 20. Under the customary law, customary
marriage is potentially polygamous, and can be easily terminated by refunding
the dowry or bride price. The people still need to be educated that both the
traditional marriage and the Christian marriage are indissoluble by the very nature
of marriage itself.
[32] See Can. 919 §1: “Whoever is to
receive the blessed Eucharist is to abstain for at least one hour before holy
communion from all food and drink, with the sole exception of water and
medicine”. There is no doubt that the
diocesan Bishop by virtue of can. 87 can dispense his faithful from
disciplinary laws where he judges that it contributes to their spiritual
welfare. However, it is submitted that a general dispensation by the diocesan
Bishop from food and drink during Mass at such as ceremony may wound the
spiritual sensibility of many faithful rather than contribute to their
spiritual welfare.
[33] The Canon Law Society of Great
Britain and Ireland, The Canon Law:
Letter & Spirit (London: 1999), 630.
[34] Cosmas A. Ojemen, “Canonical
Requirements of matrimonial consent in the Nigerian Context”, in Benedict Etafo
& Hilary O. Okeke (eds), Marriage and
the Family in Nigeria, (Onitsha: Rex Charles and Patrick Ltd, 1993), 24.
[35] Hilary O. Okeke, “Christian
Marriage in Africa Revisited”, 639.
[36] C.S. Mba, Evolving Igbo Christian Rite of Marriage, 22-23.
[37] One may ask: why should a
dispensation from the canonical form not be granted by the diocesan Bishop for
all the customary marriages so that the eldest person in the family can perform
the whole ceremony without the intervention of a priest or any ordained
minister? Can. 1127, §2 states that the
local Ordinary can dispense from the canonical form in the case of a mixed
marriage in individual cases where there are grave difficulties in the way of
observing it for the catholic party. The Episcopal Conference has the
responsibility to establish norms whereby the dispensation in question may be
granted in a uniform manner. This
implies that the diocesan Bishop may not claim the power to grant a general
dispensation for all cases of marriage, for that would amount to a derogation
of the universal law, which only the legislator himself can do. According to can.
85, a dispensation by definition is a relaxation of a merely ecclesiastical law
in a particular case and not in a
general way. It does not appear that the uniform manner intended by can. 1127,
§2 means that the Episcopal Conference, as a body, has the power to grant
dispensation from the canonical form in a general way, and outside the context
of a mixed marriage.
[38] The Rites of the Catholic Church (New York: 1983), 558.
[39] Margaret C. Onokah, Family Law, (Ibadan: Spectrum Books,
2003), 115.
[40] S.A. Adesanya, Laws of Matrimonial Causes, (Ibadan:
Ibadan University Press, 1973), 144.
[41] Sections 11 and 18 of the Marriage
Act, Laws of the Federation of Nigeria 2004.
[42] Section 3 (1) of Matrimonial
Causes Act, Cap M7, Laws of the Federation of Nigeria 2004.
[43] Sections 7 and 8 of the Marriage
Act and Form A First Schedule. Where the applicant is an illiterate the form is
in Form B First Schedule.
[44] Section 21 of the Marriage Act. It
is important that priests observe the time stipulated for celebration of a
statutory marriage, which must be between 8.00am and 6.00pm. This is because
celebrating the marriage of the parties at 6.00am during ‘Morning Mass’ is
clearly contrary to the statutory requirement.
[45] Form C in the First Schedule,
Marriage Act.
[46] Section 21 of the Marriage Act.
[47] Sections 25 and 26 of the Marriage
Act. See also E. Nwogugu, Family Law in
Nigeria, 32
[48] Section 42 of the Marriage Act.
[49] Section 43 of the Marriage Act.
[50] Section 13 of the Marriage Act.
[51] E.I. Nwwogugu, Family Law in Nigeria, (Ibadan:
Clavianum Press, 1990), 34.
[52] Form D in First Schedule, Marriage
Act.
[53] Hilary O. Okeke, “Christian
Celebration of Marriage in Africa Revisited”, 641
[54] Patrick C. Chibuko, Traditional Marriage and Church Wedding in
One Ceremony, 47-57
