Appendix: I. On the Mode of Proceeding if Revalidation Can in No Way Have Place, or Before It Can Be Done

1638. - I. If the impediment is indispensable (that is, such in which dispensation cannot be given or is not given) and public, the parties are to be treated as public concubinaries.

II. Say the same if it is public and dispensable. Yet if, in this case, the parties consent indeed to revalidation, but not to separation, the former is regularly to be preferred to the latter (that is, unless a sad outcome is feared from revalidation). Then the pastor in the supplica by which he asks dispensation will expose that the parties do not consent to separation, nor will easily consent, so that the one dispensing, according to his prudence, may enjoin it either not at all, or only for a very brief space of time.

III. If it is indispensable (for example, impotence), occult, and known to each party, place can be given to cohabitation after the manner of brother and sister, but only in a very rare case (if the parties are elderly²); for almost always that remedy, because of the danger of incontinence, will have to be rejected.

IV. If it is dispensable, occult, and known to each party, separation as regards the bed is necessary. But if from the disposition and experience of each or either party it is known that a proximate danger of incontinence exists which cannot otherwise be removed, the parties must also be separated as regards cohabitation, with the separation, if it can be done, colored by some pretext (for example, of a journey), so that sin, scandal, and infamy may be guarded against. But if separation of cohabitation, or even of bed, cannot be obtained, the danger of sinning is to be forestalled in the better mode in which it can be done. But the pastor, or the confessor if the impediment is known from Confession, should hasten the dispensation, which in this case is almost always to be chosen.

V. If it is indispensable, occult, and unknown to each party, the parties ordinarily are to be left in good faith, because if they were admonished, no remedy for guarding against formal sins could be employed except either separation or cohabitation after the manner of brother and sister. But very grave inconveniences are accustomed to stand in the way of separation; and a proximate danger of incontinence stands in the way of cohabitation. - But if it is dispensable, and there is hope that the parties, warned concerning the nullity of their Matrimony, will obey those things which must be enjoined upon them (separation of bed and, if it is judged necessary, of cohabitation, until the dispensation has been obtained), revalidation of the marriage is almost always to be chosen and the dispensation is to be hastened. But if fruit from admonition is not hoped for, it will have to be distinguished thus. If there is fear that neither party will obey those things which must be enjoined, each party is to be left in good faith until the dispensation has been obtained, which is regularly to be sought (with the parties, as is clear, unaware). I say: regularly, that is, unless there is fear that the parties will refuse the dispensation, or will not obey its conditions, or, the nullity of the Matrimony having been known, will depart from one another with scandal or with harm to the offspring, etc. Then, the dispensation having been obtained, it is communicated to the parties together with admonition concerning the nullity of the marriage. But if only one party can be admonished without grave inconvenience, but not the other (say, because the crime of the former gave cause to the impediment or because of another cause), regularly neither is to be admonished and dispensation in the root is to be sought. This having been obtained, let the party who can be admonished be admonished, so that, the sanation having been applied, he or she may furnish new consent. - But if the party who cannot now prudently be admonished is foreseen to be able afterwards (that is, after the relaxation of the impediment has been obtained) to be admonished without grave inconvenience, first, ordinarily with each party unaware, let not sanation in the root but simple dispensation be obtained, so that, this having been obtained, the consort may be admonished by the consort concerning the nullity, the dispensation may be applied, and consent may be renewed by each party.

VI. If it is indispensable, occult, and known to one party, this party, as is clear, would illicitly both render and ask the debt; he or she must manifest the impediment to the consort, and nothing remains except either separation, or, in a very rare case, cohabitation after the manner of brother and sister.

VII. If it is dispensable, occult, known to one party, and grave inconveniences are not feared from manifestation (for example, separation, or, in the case in which the impediment arises from the crime of the party knowing the nullity, the infamy of this party, etc.), the impediment, or at least the nullity of the Matrimony, must regularly be revealed to the ignorant party by the conscious party. This having been done, the nuptials are ordinarily to be revalidated, and this through simple dispensation. - But if, as will often happen, grave inconveniences are feared from manifestation or the impediment has arisen from the crime of the conscious party, revelation is to be omitted and dispensation is quickly to be procured, and this ordinarily through sanation in the root. Meanwhile, as is clear, to the conscious party both rendering and petition of the debt is forbidden; and therefore the debt is to be denied in the better mode in which it can be done.

1639. - I. In the internal forum, whether penitential or extra-penitential (n. 149), many matrimonial cases are resolved by confessors, by pastors, by Ordinaries, with no peculiar form of judgment, but only with those things observed which natural and positive law demand according to the species of the fact and the circumstances.

II. For the external forum we note these things.

1) The judge of matrimonial causes. - a. For the whole world, it is the Pope; the Sacred Congregation of the Council; the Sacred Congregation of the Office or Inquisition in certain cases. - b. The Metropolitan for inhabitants both of his own diocese and, in the case of appeal, of his own province. - c. The Bishop for his own subjects, and, according to the more common sentence, also his Vicar, and, as it seems, the Capitular Vicar (among us, the Administrator), the See being vacant. - d. Delegates by the Pope or by the Bishop.

2) The actor can be: a. For impeding the celebration of Matrimony, whoever knows an impediment (n. 1540, 1541). b. For asking divorce as regards bed and habitation, the innocent spouse alone (n. 1553. q. 4°). c. For asking a sentence of nullity of Matrimony, the impediments because of which this sentence is sought must be distinguished. - In the case of fear and error, only the spouse who erred, who was deceived by fear, is admitted; but he or she is not admitted after, the fear and error having ceased, he or she has cohabited. - In the case of impotence, the spouses themselves alone are admitted, since they can, if they please, cohabit (not however licitly except in the very rare case, as was said above in n. 1638) after the manner of brother and sister. - In the remaining cases of impediments, all who are conscious of the impediment are regularly admitted, and this if they can prove it fully, or give sufficient indications for inquiry. The ecclesiastical judge himself also, if the impediment is manifest and public, inquires by his own authority, no one denouncing or accusing, and pronounces concerning the nullity. - Who are repelled as actors, see the Decretals.¹

3) Witnesses for or against a contracted Matrimony are admitted before the rest, who are presumed to have more certain knowledge of the impediment (as parents, blood relatives, relatives by affinity, if there is question of consanguinity or affinity), and are not of suspect faith; and likewise witnesses otherwise suitable according to the general principles which are handed down by the Canonists.²

4) Semiplena proof (such as is that which is sought from one trustworthy witness, or from common rumor, or from another indication) suffices so that the celebration of Matrimony may be impeded (n. 1541 q. 3°). - But so that the nullity of a Matrimony already contracted may be declared, full proof is required. But although elsewhere one's own confession is called the best proof, nevertheless if the married persons were to confess in court an impediment, the Matrimony would not for that reason immediately have to be defined as null, unless from other proofs the truth appeared: namely lest spouses, weary of cohabitation, be able to collude and feign an impediment.³ Cf. n. 1548, q. 7°.

5) A sentence for or against the value of Matrimony by no lapse of time passes into a thing judged;⁴ and therefore if a new matter which was unknown or not deduced is detected, the cause can again be referred to judgment.⁵

6) The judicial form in matrimonial causes is summary; but if there is question of the value or nullity of Matrimony, under penalty of nullity, even when the Matrimony is notoriously and evidently invalid,⁶ those things must be observed which are described by Benedict XIV in the Constitution Dei miseratione, November 3, 1741, of which the principal dispositions are that, at the individual acts of the trial, a defender of Matrimony, that is, of its value, be present, and that one sentence of nullity not end the case and therefore appeal be made until two conforming sentences concerning nullity are had. Van de Burgt, De Matr. n. 525-534.