Article — Gury-Ballerini, Compendium of Moral Theology (8th ed., 1884)
Article II. On the Revalidation of a Marriage Invalid Through Defect of the Prescribed Form
- I. It is certain that a marriage invalid by reason of clandestinity must be entered before the Pastor and witnesses, unless a dispensation from the law of the Council of Trent is obtained from the Supreme Pontiff, which otherwise is rarely granted. For that law obliges until it has been fulfilled, since it is a condition sine qua non required in every case for the validity of marriage, unless recourse to the Pastor is impossible, as was said above where the impediment of clandestinity was treated.
II. If both spouses do not refuse to present themselves before the Pastor, the marriage must be revalidated before him either publicly or secretly, according as the nullity of the marriage was public or occult. The reason is that, in the former case, scandal must be removed; but in the latter it must be forestalled and the reputation of the spouses preserved.
This is further confirmed from the Declaration of Cardinal Caprara, legate a latere in France, in the Instruction on the revalidation of invalid marriages. For thus he says: 6. If the nullity of the marriage is occult, or commonly unknown, the marriage must be contracted secretly before the proper Pastor, with at least two trustworthy witnesses employed, in order to avoid scandals; the entry is then to be recorded in the book of secret marriages. 7. If the nullity of the marriage is public, the marriage must be celebrated publicly, with the form of the Council of Trent observed, in order to remove scandal. But if the Ordinary, on account of particular circumstances, shall judge it expedient that it instead be celebrated secretly before the proper Pastor and two witnesses, it can be celebrated secretly, provided, however, that the public scandal can be removed in another manner and is removed as soon as possible.
Various difficulties occur, however, if one party consents to contract before the Pastor and the other refuses, or if both are badly disposed. Hence:
- Questions. - QUESTION 1. What must be done if one party or both consent to renew consent before the Pastor, but refuse to go to the church?
Reply. They must be joined in their own home or in another place chosen by them, provided grave witnesses are present, by whose aid the convalidation of this marriage can be made public if this is necessary for removing scandal, namely, if the invalidity of the former union is notorious.
QUESTION 2. What must be done if one party refuses to contract before the Pastor?
Reply. Cardinal Caprara responds thus in the cited Instruction: If the refusal arises from ignorance or some error contrary to the laws or doctrine of the Church concerning impediments which invalidate marriage, let the refusing party be instructed with due prudence and in charity. And insofar as the party still refuses to convalidate his marriage in the face of the Church, then pains must be taken that he appoint a special proxy who may contract the marriage in his name in the customary manner; or at least that, by consent de praesenti expressed through a Letter directed to the proper Pastor or to another Priest having the permission of the Ordinary or Pastor, the marriage be renewed.
- QUESTION 3. What if the indisposed party is unwilling to contract even through a proxy, etc.?
Reply. The same Cardinal Caprara responds thus:
If the things prescribed thus far can by no means be obtained, and one party cannot be brought to carry out the celebration of the marriage according to the things handed down above ..., we judge that recourse can be had to a dispensation in the root of the marriage, or to the sanation of the marriage in the root, so that at least the salvation of the soul of the innocent party, the legitimacy of the offspring, and the tranquility of the families may be fully provided for, and the salvation of the soul of the refusing party also may be provided for as soon as possible.
QUESTION 4. What if neither party consents to contract marriage anew?
Reply. Nothing at all is to be done here and now, since no dispensation is granted by the Church in such a case. It remains, therefore, that the Pastor devote himself to fervent prayer, frequently commend the most wretched concubinaries to God, and strive with assiduous care to procure their conversion.