Section — Gury-Ballerini, Compendium of Moral Theology (8th ed., 1884)
§ I. On the Revalidation of Marriage in the Ordinary Manner
- I. Rule. If each spouse is aware of the impediment, each is bound to renew consent, after the dispensation has been obtained, in order to revalidate the marriage. The reason is that knowledge of the nullity of the marriage because of a known diriment impediment had necessarily excluded true consent in the preceding contract of marriage.
II. Rule. If only one party knew the impediment, that party is certainly bound to renew his or her consent, at least alone and separately. This follows from what has just been said.
III. Rule. The party ignorant of the impediment would not necessarily have to renew consent for the validity of the marriage if the impediment regarded only the other party. The reason is that the consent of the former was valid from the beginning and therefore perseveres; hence renewal of the consent of the incapable party would suffice. Thus, if a member of the faithful had married an unbaptized woman who was ignorant of the impediment, it would suffice, after the infidelity ceased or a dispensation was obtained, that the faithful spouse renew consent; because the consent of the unbeliever was valid, since the Church could not impress a personal incapacity upon her.
- Questions. - QUESTION 1. Must the party who is ignorant of the impediment necessarily renew consent for the valid restoration of the marriage?
Reply. There are two probable opinions:
I. OPINION. It commonly affirms. The reason is: 1. because the impediment removes the efficacy of consent from the beginning; therefore it remains inefficacious, and consequently can produce no effect, since it perseveres in the same manner in which it was given. A simple dispensation, however, does not heal the defect which preceded, but only renders the parties capable of consenting in the future. 2. Because this clause is customarily added in the Rescripts of the Sacred Penitentiary: The other party having been informed of the nullity of the prior marriage. Therefore, etc. - Sanchez, Sylvius, Navarrus, etc.
II. OPINION. It denies. The reason is that the prior consent, although it lacked its effect because of an impediment imposed by positive law, was nevertheless valid by natural law, since it was given to a person capable of contracting by natural law. Therefore, once the impediment is removed, the prior consent suffices, which virtually perseveres in its effect through conjugal intercourse, cohabitation, or other external signs. Therefore, when the internal consent of the spouse aware of the impediment is added, expressed at least through similar external signs, the consent of both is united and the marriage is convalidated. Nor does the clause of the Sacred Penitentiary stand in the way, for it is judged to be added not as a true condition but as a simple instruction; because otherwise this condition would often be frustrated. - The Salmanticenses, etc.
Nevertheless, in practice one must not depart from the first opinion unless a dispensation in the root is obtained, at least outside a case of urgent necessity. But if the case is urgent and a dispensation in the root cannot easily be obtained, it will be licit to use the second opinion; because in straits of this kind it is not forbidden to use a probable opinion even with the danger of frustration of the Sacrament 1. An urgent necessity is present when, from manifesting the nullity of the marriage to the other party or from the separation of the spouses, danger of death or grave infamy or scandal can prudently be feared. Thus St. Ligorius, nos. 1114, 1115.
1 Say rather that the Sacrament is not then frustrated; for it is a question of matter in which the Church can supply. And since in the case it is not permissible to have recourse to the same Church, while otherwise the contracting parties act according to a probable opinion, it must be held that the Church in fact supplies.
- QUESTION 2. Does the renewal of consent presuppose knowledge of the nullity of the marriage?
Reply. It appears that one must affirm with the more common opinion. The reason is that renewal of consent must necessarily proceed from the intention of effecting a marriage; but one who believes that the prior marriage was valid does not will to effect a marriage, but only renews and ratifies the marriage previously entered. And since that marriage was invalid, the marriage cannot be convalidated through consent of this kind. This must especially be affirmed if it is a question of a spouse who is presumed likely to dissolve the marriage if he knew of the nullity. For then he would be judged to say that he wills the marriage, but the one which existed from the beginning, and not another. - See St. Ligorius, ibid.
- QUESTION 3. Must consent be renewed before the Pastor and witnesses?
Reply 1. Affirmatively, if the impediment is public. The reason is: 1. because the reason of removing or forestalling scandal then presses; 2. because the Briefs of the Datary always require it in this manner; 3. because otherwise the validity of the marriage could not be proved before the Church, since it is publicly established that the Pastor and witnesses were not present except at the celebration of an invalid marriage; and thus the end intended by the Council of Trent would not be obtained. For the spouses, after the marriage had been secretly revalidated, could separate and enter new marriages with others with impunity.
Reply 2. Negatively, if the impediment is occult. The reason is: 1. because the law of the Council of Trent then appears already to have been sufficiently fulfilled through the presence of the Pastor and witnesses at the first marriage; or because the Council of Trent, in prescribing the presence of the Pastor and witnesses, is rightly presumed not to have wished to include this case. For the Council wished only to meet the inconveniences which arose from marriages celebrated secretly; but in our case the marriage has already been publicly contracted, and therefore that danger is absent. It is sufficient, therefore, to place the new consent secretly. 2. Because an extension of the law to this case would be not only useless but also harmful, since it would furnish occasion for many scandals, expose the parties to defamation, and induce many other inconveniences; therefore, etc. 3. Because it is proved from the constant practice of the Sacred Penitentiary, the Sacred Congregation of Cardinals, and other tribunals. - St. Ligorius, no. 1110, and others commonly against a few.
- QUESTION 4. Must at least a marriage null because of an occult impediment be revalidated before the Pastor and witnesses if they were aware of the impediment at the time of the marriage?
Reply. Negatively, more probably. The reason is that the assistance of the Pastor and witnesses was prescribed by the Council of Trent not so much for attesting to the validity of the marriage, which can be unknown to them in many ways, as for proving the external celebration of the marriage, so that the danger that the same spouses might enter other marriages may be forestalled.
Sanchez with La Croix and several others, however, probably affirm, says St. Ligorius; because the Pastor and witnesses, by assisting at a marriage known to them as invalid, were witnesses only of the nullity of the marriage.
In practice, apart from grave difficulty, the safer part should be followed. Otherwise this case is scarcely probable as regards practice.
- QUESTION 5. In how many ways can consent be renewed or elicited from the party ignorant of the impediment after the dispensation has been obtained?
Reply. These are the principal ways assigned by various authors:
I. Way. If the spouse simply says: Our marriage is null because of some impediment; or: My Confessor told me that it is null ..., and therefore let us renew consent.
II. Way. If the spouse says: I did not have true consent when I contracted marriage; I now wish to give a new consent; do you also wish to give it? This way is commonly admitted by authors, and can rightly be employed without a lie, since null consent is not true consent; and otherwise the spouse ignorant of the impediment thus knows the nullity of the marriage sufficiently.
III. Way. If the spouse says: I am troubled by scruples concerning the validity of our marriage , and therefore let us renew our consent. This way can be admitted according to the more common opinion with St. Ligorius, no. 1117. For it is sufficient that the other party place consent independent of the prior consent; and for this it is sufficient if the party prudently doubts the validity of the first marriage.
Various other ways are also proposed by several Theologians; for example, if a spouse says to the other spouse: Tell me, please, if our marriage were null, would you not wish to contract again? Or: If you had not married me, would you not now wish to marry me? etc. But these ways are rightly rejected, because it is thus uncertain whether the other party intends to repeat consent for the preceding marriage or rather to consent to a new one. - See St. Ligorius, no. 1117.