Case XXI: Healing a Marriage at its Root

Applied correction from Woywod’s opening insert: Case XXI, page 114.—The Code in Canon 1138 says that the dispensation from renewing the consent can also be given when either one or both parties are ignorant of the invalidity of their marriage.

Question.—On page 54, vol. II, of the “Casuist,” it is said that a Sanatio in radice may be procured and applied without renewal of consent of either party. On the contrary, it is stated on page 358 of Father Slater’s Moral Theology, that “a necessary condition for the exercise of sanatio in radice is that before the sanatio is applied, one of the parties should be aware of the impediment.” Do I understand this aright? If so, how conciliate these two pages?

Answer.—There is no discrepancy between what Father Slater says and what is stated in the “Casuist.” On the page quoted, the “Casuist” remarks incidentally that a sanatio in radice may be applied, even though both parties to the marriage remain ignorant of the existence of the diriment impediment that invalidated their marriage at the time when it was contracted. That a sanatio in radice may be so applied is quite certain. Any handbook of moral theology will bear this out. For instance, Father Noldin says: “A radical sanation can be made in two ways: either so that a renewal of consent is required, or without a renewal of consent. According to ecclesiastical usage, sanation without renewal is ordinarily made, especially where the putative spouses are ignorant of the nullity of their marriage and cannot be admonished about it; nevertheless the Supreme Pontiff sometimes commands a renewal of consent as a penalty, namely where one party acted in bad faith at the time of the celebration. But if new consent is prescribed, it is necessary for the validity of the marriage. From this it is evident that the sanation of a marriage can be made even without either party’s knowledge and is in fact made whenever harm is feared from an admonition; for no act on the part of the spouses is required for the sanation” (de Mat. n. 661, 2).

II. The question that Father Slater treats on page 358 of his “Moral Theology,” is quite distinct from the above. Father Slater treats the question whether the bishops of the United States have received faculties from the Holy See to grant a sanatio in radice, even though both parties to the marriage are allowed to remain in ignorance of the diriment impediment that invalidated their marriage when it was first contracted. The question treated by Father Slater, therefore, is a question of the comprehensiveness of the faculties granted by the Holy See to the American bishops to dispense from some diriment impediments to marriage. Father Slater maintains, and with reason, that the American bishops have no faculties from the Holy See to grant a sanatio in radice while both parties to the marriage remain in ignorance of the diriment impediment. One of the parties, at least, must be made aware of the invalidity of the marriage and the removal of the diriment impediment by the sanatio in radice, and such party must renew the consent. The “Casuist,” therefore, merely says that a sanatio in radice may be applied, inscia utraque parte; Father Slater says that the American bishops have not received faculties from Rome to grant a sanatio in radice, except on condition that one of the parties to the marriage be made aware of the diriment impediment and its removal through the Sanatio, and such person renew the consent. And since this latter question is of importance, it may be well to review it briefly. Among the faculties granted by the Holy See to the American bishops, to be renewed every five years, is the following one:

“Of radically sanating marriages already contracted when it is discovered that a diriment impediment was present from which he himself can dispense by an indult of the Apostolic See, and when it would be a great hardship to require a renewal of consent from the innocent party, provided, however, that the party aware of the impediment is admonished concerning the effect of this sanation.”

As the interpretation of this faculty had given rise to much controversy and serious doubts were entertained by bishops and priests concerning its application, the Bishop of Covington, in 1906, wrote to the Congregation of the Holy Office for an authentic interpretation. Among the questions proposed by the Bishop of Covington concerning the application of this sanatio in radice was the following: Whether the American bishops could apply this faculty in a case where both parties to the marriage are aware of the nullity of their marriage, but one of them cannot be induced to renew the consent? “Whether there is scope for the faculty if both parties indeed know the nullity of the marriage, but one of them cannot be induced to renew consent?” To this the Holy Office replied:

“No, unless it is established that true consent was given under the appearance of marriage and that the same consent perseveres on the part of each.”

The bishop then inquired, further, whether the sanatio in radice might be applied in case both parties are ignorant, hic et nunc, of the invalidity of their marriage, provided later on one of the parties be informed that their marriage has been validated by the sanatio in radice? “Whether there is still scope for the faculty if both parties here and now are ignorant of the nullity of the marriage, provided that afterward one party is admonished concerning the sanation obtained and its effect?” To this the Holy Office replied: “As set forth, no.”

From this answer of the Holy Office it is evident that if both parties to the marriage contract be ignorant of the nullity of their marriage, the American bishops cannot exercise the faculty sanandi in radice, even though one of the parties be informed later on that the sanatio had been applied and that its effect was the curing of the marriage. In other words, before the American bishops can exercise their faculty of sanandi in radice, one of the parties to the marriage must be made aware of the invalidity of the marriage previous to the exercise of the faculty sanandi in radice. There is no question here of the power of the Holy See to grant a sanatio in radice and to cure a marriage, even though both parties to it be ignorant of its nullity. The question here at issue is whether the facultas sanandi in radice granted by the Holy See to our bishops is restricted. And it is evident from what has been said that it is restricted.

But suppose that both parties to the marriage are ignorant of the nullity of their marriage and neither of them may be informed of its nullity without great hardship and grievous scandal, what is to be done in such a case? Both parties are to be left in good faith, or, if it is feared that the married parties may learn later on of the nullity of their marriage, to their own great injury and suffering, recourse may be had by special letters to the Holy See for a sanatio in radice, utraque parte inscia impediment, which sanatio, if granted, will be valid or authentic also in foro externo, to prove the validity of this marriage, should it be subsequently attacked. The rescript that the Holy See forwards in such a case granting the sanatio, should be carefully guarded by the bishop for possible future use in foro externo.

To sum up briefly, therefore, we say: 1. If both parties to a marriage, which is null and void on account of some diriment ecclesiastical impediment, can be induced to renew their consent after the impediment has been dispensed, they must renew their consent.

All that is needed in this case is a simple dispensation from the diriment impediment and a renewal of consent.

2. If one of the parties to such a marriage be ignorant of the nullity of the marriage and cannot be informed of it without great hardship—magnumque fore incommodum requirendi a parte innoxia renovationem consensus—then a sanatio in radice may be applied, provided that the party aware of the nullity of the marriage renew the marriage consent.

3. Where both parties to the marriage are ignorant of its nullity, - one of them must be informed of such nullity before the American bishops can grant a sanatio in radice.

4. Where both parties are ignorant of the nullity of their marriage, and it is impossible to inform either of them of this fact, recourse must be had to the Holy See for a sanatio in radice, utraque parte inscia nullitatis.