(Bishop of Nakuru, Kenya)
Present Situation: Many of our Christian Faithful have finalised their marriage in the traditional way according to the African customs of their own tribe but for different reasons independent from the will of either one or both of the partners they have not yet come to the Church for the sacramental marriage even if in principle there is the wish to do this. In the meantime they are considered by the Church as living in concubinage because their traditional marriage has no canonical value. The consequence is that they are deprived from the reception of the sacraments, which, in the expression of some of our priests, leads to a "Eucharistic famine" of many Catholics in our parishes. This situation is too briefly mentioned in the Instrumentum Laboris no. 68.
Proposal: The pastoral solution seems to point towards the possibility of recognising, under certain conditions, the traditional marriage as a valid form of marriage among Christians that would allow one or both of the partners to have access to the sacraments of the Church.
Reasons:
1. There is a theological possibility for the Church to reconsider the form of the sacrament as it has "de facto" happened in history. The Church has power on the sacraments "salva illorum substantia" to use the words of the Council of Trent. We know that there is no concrete form of Christian marriage in the New Testament. The present canonical form of the Catholic marriage, the mutual consent, has its origins in the Roman Civil marriage and it was freely chosen by the Church at a moment of history. But the consent can be expressed in many different ways and contexts.
2. The traditional marriage has a civil and social value in our African societies. 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 baptised, is recognised a valid marriage and no further marriage is required after their Baptism.
3. Marriage in Africa, unlike in the Western societies, is not a matter of the spouses alone but is rather a covenant between two families which through every marriage create new links and tend 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 to a Catholic marriage in the Church. In this case, as is so often the case in the Canon Law, the protection of the faith of the Catholic part should claim for a pastoral solution allowing one or both of the partners to receive the sacraments of the Church after completing their traditional marriage. We all know that there are, as a matter of fact, situations considered by the Canon Law, in which the Ordinary can dispense from the canonical form of marriage.
4. In the present circumstances there is a clear dichotomy between the cultural rites of marriage recognised by the African societies and the rite of sacrament. It is hard for people to understand that a couple married customarily, having children and living faithfully is still considered by the Church as living in concubinage.
Conclusion It is not our purpose to present here an achieved solution. We are aware of all the theological, canonical, moral and pastoral dimensions of this delicate issue. We are not proposing here either the acceptance of a "trial marriage" nor a "progressive marriage". What we propose is that the Synod ask His Holiness the Pope to appoint a special committee of expert theologians, canonists and pastors that would present to him a way of pastoral solution for his approval as Pastor of the universal Church.
Original text: English
