Kenyan Catholic Canonist Calls for Formation to Counter Growing Inclination towards Divorce

At the same time, the lecturer at the Kenya-based Catholic University of Eastern Africa (CUEA) acknowledged that not every aspect of canon law could be incorporated into civil legislation.

“For those areas where canon law and civil law fundamentally differ because of divine law, no concordat would be possible. We cannot compel the Government to remove provisions from the Marriage Act simply because they differ from Church teaching,” she said, noting that it would ultimately be the Government’s responsibility to determine whether any amendments to the law should be made.

Addressing concerns over the recent court ruling based on Mr. Gathirimu’s constitutional petition, Sr. Kasisi said she did not believe it posed a threat to Catholic marriages because Kenya has no concordat requiring the Catholic Church to recognize civil divorce judgments.

“Any Catholic who goes through a civil divorce simply completes a civil legal procedure. Civilly, the marriage is dissolved, but within the Church, the marriage remains exactly as it was celebrated until one of the spouses petitions for an annulment before the Catholic Church,” she explained.

She, however, cautioned that the ruling could reinforce the mistaken belief that a civil divorce automatically ends a sacramental marriage, underscoring the need for greater catechesis on the distinction between civil divorce and a declaration of nullity.

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“A civil divorce does not take away the sacramentality of a marriage celebrated in the Catholic Church. It only terminates the civil contract as understood by Kenyan law. It does not affect the Sacrament of Marriage celebrated in the Catholic Church,” she said.

The judge of the Metropolitan Tribunal of the Archdiocese of Nairobi explained that Catholics who have obtained a civil divorce decree must still undergo the Church’s annulment process if they wish to establish whether their marriage was invalid from the beginning.

The member of the Catholic Sisters in Legal Profession (CASILEP) noted that a civil divorce decree does not guarantee a declaration of nullity, explaining that tribunals may reject a petition if sufficient canonical grounds are not established.

“A person may complete the entire annulment process and still receive a negative judgment,” Sr. Kasisi said, adding, “If the facts do not establish that the marriage was null from the beginning, the judgment will ordinarily be negative, confirming the validity of the marriage as celebrated.”

She explained that only where the Tribunal reaches moral certainty that a diriment impediment, a defect of consent, or a defect in canonical form existed before the marriage was celebrated can it declare the marriage null.

Sr. Kasisi also suggested exempting Catholics from the eCitizen marriage application process, allowing Bishops and Priests, who are already licensed by the Government as marriage registrars, to complete the legal formalities after the wedding by forwarding marriage certificates to the relevant State authorities.

“The Government would retain a copy, the Church would retain a copy, and the couple would also have a copy for their records,” she said, adding that “the important thing is to eliminate the unnecessary duplication of procedures.”

She further proposed that declarations of nullity issued by Catholic tribunals be forwarded to the Government for official record and that tribunal officials be allowed to participate in civil proceedings involving the annulment of Catholic marriages so that decisions consistent with canon law could also be recognized within the Church.