Case IV: Legalization of an Illicit Union

Mr. X, a Catholic, left his lawful wife, some years ago, and took up with another woman. He had to promise this other woman that he would marry her as soon as his legitimate wife died. This was the only condition on which she would live with him. After sometime, Mr. X's lawful wife died, but he did not marry the woman with whom he was living. The woman kept urging him to get married, but he delayed for one reason or another, until finally he fell dangerously sick. He called in the priest, and before making his confession, he told him that he had never been married to the woman with whom he was living, that he had begun to live with her while his first wife was alive, and they had promised one another to get married as soon as the first wife should die, but had neglected to do so. After this much information, the priest suggested that as he was sick, he would marry them right away, with a dispensation, as the woman was a non-Catholic. The sick man then told the priest that such a course was impossible as the impedimentum impotentiae had existed in his case for the last few years, and in the opinion of several reliable physicians, his condition was permanent. He could not leave the woman, as every one thought they were husband and wife, and he did not have long to live. What could be done for them?

Answer. In the first place when Mr. X left his lawful wife, and went to live with another woman, under a mutual promise of marriage, in the event of the first wife's death, he was barred from ever marrying this second woman by the impedimentum criminis adulterii, which is a diriment impediment. If this were the only difficulty in the way of Mr. X's marriage to the second woman, the case would be very simple. All that would be required, would be a dispensation "super impedimento criminis adulterii" and then a marriage ceremony with the exchange of marriage vows. The woman being a non-Catholic, another dispensation would be required, namely "dispensatio super impedimento mixtae religionis." But in the mean time a new impediment to the marriage has arisen, viz., "impedimentum dirimens impotentiae." This impediment is created by the law of nature, and lies outside the jurisdiction of the Church. The Church has no power over it, and cannot therefore remove it. It stands, therefore, as an effectual bar to the contracting of this marriage. But could the Church not grant a "sanatio in radice"? We know that the Church does sometimes grant a sanatio in radice even when a diriment impediment juris naturae has arisen in the mean time. But the Church grants a sanatio in radice only when there was from the beginning a real marriage, which was invalid on account of a diriment impediment of the Church's own making.

In this event, there has been a mutuus consensus from the start, but this mutual consent has been prevented from producing its natural and legitimate result, viz., a valid marriage, by reason of an impediment that the Church herself, by her own legislation, has put in the way. The mutual consent of both parties to the marriage contract is supposed to be enduring at the time the sanatio in radice is granted. This original mutual consent is what the Church cures. And it is cured by the removal of the impediment which rendered it inoperative. As the impediment was of the Church's own making, she can remove it. In which case, the mutual consent of the parties to the marriage immediately goes into effect and creates a valid marriage. It is evident that if the mutual consent was rendered inoperative in the beginning by an impediment of the divine law, or the natural law, the Church, having no jurisdiction, could not remove such impediment, and therefore could not cure the original consent. It is evident also, that in the case of the original consent being ineffective or inoperative by reason of an ecclesiastical impediment, the consent can be rendered effective and operative, or in the technical language of the law, cured, by the removal of the impediment even though, in the meantime, a diriment impediment juris naturae, v. g. impotentiae, has arisen. For while this new impediment would act as an effectual bar to a new consent, it would not affect the consent that was given before it arose, and which consent is still enduring. In the case of Mr. X, if there had been a marriage ceremony performed between him and the second woman immediately after the death of his first wife, the marriage would have been invalid propter impedimentum criminis, but still it could have been cured in radice, by the removal of the impedimentum criminis, which is of ecclesiastical origin, supposing that the consent of both parties is still existing. And that consent is not vitiated, to use the language of the law, by the subsequent natural impediment. The only thing that prevented that consent originally from creating a valid marriage was the impedimentum criminis, and the only obstacle that bars its way at present is that same impediment of crime. The subsequent impediment of "impos" would be an effective bar to anew or renewed consent, rendering the same impossible by a law of nature, but would not affect a consent given before it arose. Mr. X, however, did not enter into a marriage contract with this second woman, and therefore there existed no marriage consent which might be cured. He desires now, for the first time, to elicit such consent. But now it is too late, for nature has intervened and rendered Mr. X incapable of entering into a marriage contract, and any consent that he gives now is, by the law of nature, invalid. Nothing can be done now to legalize, coram Deo et Ecclesia, Mr. X's marriage. What further steps should be taken by the priest, will depend on circumstances and the priest's good judgment. If Mr. X has but a short time to live and if, from the nature of his malady, there is no hope of his recovery, it might be best to leave him where he is, as from his statement there is no periculum peccandi to be feared. Under other circumstances, it would be advisable to remove him to a hospital