A civil law

Clarifying some confusions about the proposed Christian Marriage and Divorce Act 2019

A civil law

After nearly 150 years the laws governing the marriage and divorce of Christians in Pakistan are being revised. Christians number over four million in Pakistan, but despite their not insignificant numbers, these revisions have always been a matter of conversation, not action. However, now it is clear that the present government is keen to bring in this legislation and Federal Minister for Human Rights Dr Shireen Mazari is personally taking interest in this matter. We must all support this initiative.

Having been a part of the conversation and having attended several meetings, consultations and dialogues, regarding the proposed changes, I have realised that there are a number of confusions regarding the proposed law, which must be cleared up in order to give people a holistic and rational understanding of the proposed changes.

The foremost confusion is that this is a ‘religious’ legislation and that it amounts to ‘changing the Bible’. This is a very erroneous view.

The proposed Christian Marriage and Divorce Act 2019 is a civil statute and will always remain so. It regulates issues relating to marriage and divorce where Christians are involved in Pakistan, but does not make any intervention in religious law. Its antecedents the 1869 Divorce Act and 1872 Christian Marriage Act followed British legislation in the nineteenth century which made these two issues the domain of civil courts, while leaving religious bodies to regulate these issues according to their own rules.

Thus, even in England where the Church of England is the established church, a civil framework was given to these issues, so as not to impinge on the precepts of different churches, while also enabling the civil government to regulate them in its own domain. Hence both the 1869 and 1872 Acts were ‘civil’ legislations. The proposed new law is also a ‘civil’ matter.

The main reason why such legislation cannot be ‘religious’ is that there is no agreement in the religious laws of churches (either in Pakistan or aboard), and therefore it would be impossible to create one religious law acceptable to even the few larger denominations represented in Pakistan. For example, in the Catholic Church marriage is a sacrament, i.e., ordained by God, and indissoluble under any circumstances. This understanding differs from some sections of the Anglican Communion and the Protestant churches where marriage is seen as a ‘rite’, with a different theological meaning.

Furthermore, since the Catholic Church maintains that marriage is for life, there is no provision in its law, the Code of Canon Law, for divorce. Therefore, under no circumstances can a Catholic receive something called a ‘divorce’ in the religious sense. This is in direct conflict with the belief of several Protestant communities where divorce is allowed on the basis of adultery, according to their interpretation of the Bible.

What the proposed law is doing is updating an old piece of legislation with some new principles of human and women’s rights and ensuring that processes are made easier and more streamlined and that the suffering of a significant number of people in their country is reduced.

Moreover, the Catholic Church has a process of ‘annulment’ through which a marriage can be declared as not having taken place at all. This process is codified in its Canon Law. However, a number of other communities either do not accept such a concept of annulment, or do not accept the grounds the Catholic Church provides for it.

Therefore, from the above it is clear that if an attempt is made to make the proposed legislation religious, there would be a serious question as to what denominational line it would follow. The Catholic Church has over fifty percent adherents among Christians in Pakistan and therefore could claim that its law should be adopted. After all, the Canon Law of the Catholic Church is codified, has enough case law, and is universal. But then a number of Protestant communities would not want to accept a law which does not allow for divorce in any circumstances, even in cases of adultery. These Protestants might also consider the allowance for annulment too lax or liberal too.

On the other hand, if a Protestant understanding of the issue is made law then it would not be clear which specific understanding should be enacted. Should it be according to the Church of Pakistan which claims a following of a quarter of the Christian population of Pakistan and largely follows Anglican Canon Law, or should the understanding of the Presbyterian Church of Pakistan which claims 10-15 percent of the Christian flock be taken as law, or that of the several hundred other churches?

Since there are deep theological and legal differences between denominations, any attempt to make it a ‘religious’ law will bring a lot of complications. There is also very little room for negotiation between denominations since barring the small local denominations, most of the large ones in Pakistan are part of their international church and so cannot divert from their long-held universal positions.

For example, for the Catholic Church worldwide, the Code of Canon Law is the universal law, and therefore no Catholic priest, bishop, archbishop, etc, can ever agree to anything contrary to Canon Law officially, no matter what their personal opinion. So if ‘divorce’ under the proposed law is a ‘religious’ issue, no Catholic bishop can agree or sign the document since divorce is not recognised by the Catholic Church.

Consequently, it is only rational that the proposed law be only civil, while religious denominations follow their own particular law in their own communities. So since the Catholic Church does not recognise divorce under any circumstances it does not need to accept the new divorce provisions, just like it never accepted the 1869 Act as a religious edict. Similarly, the Church of Pakistan or the Presbyterian Church or any other church does not need to accept in religious terms the provisions for divorce, if it does not agree with their own religious law, which they are free to follow among their adherents. This proposed law will, therefore, only regulate the civil aspects of the issue.

Even if there were even a way to make this a ‘religious’ law with the agreement of major churches, it would be very difficult to adjudicate in practice. As pointed out by Dr Majid Abel, Moderator of the Presbyterian Church of Pakistan, at a consultation on September 19, 2019, it would require the appointment of Christian judges who are well versed in Christian law (and of differences in different denominations), and of Christian lawyers and advocates, who are similarly well versed in particular laws. Since this is a tall order, and a huge issue of capacity building -- something which is currently not possible -- a religious law would be unworkable till there is capacity in the legal system to adequately adjudicate on it.

All around the world, in several deeply Christian countries even, there is a provision for civil regulation of marriage and divorce, and the government of Pakistan simply wants to follow that practice. There is nothing in the proposed act which affects the religious beliefs of particular churches or anything which impinges upon their right to impose their own laws on their followers. That is completely within their domain.

What the proposed law is doing is updating an old piece of legislation with some new principles of human and women’s rights and ensuring that processes are made easier and more streamlined and that the suffering of a significant number of people in their country is reduced. We must therefore support this effort.

A civil law