§ I. On the Revalidation of Matrimony in the Ordinary Mode

1633. - First Rule. If each spouse is conscious of the impediment, each is bound to renew consent, after a dispensation has been obtained for revalidating the Matrimony. The reason is that knowledge of the nullity of the Matrimony, because of a known diriment impediment, had necessarily excluded true consent in the preceding contract of Matrimony.

Second Rule. If one party only has known the impediment, that one is certainly bound to renew his or her consent, at least alone and separately. It follows from the things just said.

Third Rule. The party ignorant of the impediment would not necessarily have to renew consent for the validity of Matrimony, if the impediment regarded the other party only. The reason is that the consent of that one was valid from the beginning, and therefore perseveres; therefore the renewal of consent of the incapable party would suffice. Hence, if a faithful person had married an unbaptized woman who is ignorant of the impediment, it would suffice that, infidelity ceasing or a dispensation having been obtained, the faithful person renew consent; because the consent of the infidel was valid, since the Church could not impress personal incapacity upon her.

1634. Questions. - Quaer. 1° Must the party ignorant of the impediment necessarily renew consent for the valid reintegration of Matrimony?

Resp. A twofold probable sentence is given:

The first sentence affirms. The reason is, 1° because the impediment takes away the efficacy of the consent from the beginning; therefore it remains inefficacious, and hence can produce no effect, since it perseveres in the same mode in which it was given; but a simple dispensation does not heal the defect which preceded, but only renders the parties capable of consenting in the future; 2° because in Rescripts of the Sacred Penitentiary this clause is usually added: the other party having been certified concerning the nullity of the prior Matrimony. Therefore. - Sanchez, Sylvius, Navarrus, etc.

The second sentence denies. The reason is that the prior consent, although it lacked its effect because of an impediment placed by positive law, nevertheless by the law of nature was valid, since it was furnished toward a person capable by the law of nature of contracting; therefore, the impediment having been removed, the prior consent suffices, which virtually perseveres in effect through conjugal copula, cohabitation, or through other external signs. - Therefore, the internal consent of the spouse conscious of the impediment acceding, expressed at least through similar external signs, the consent of each is united and the Matrimony is convalidated, etc.

In practice the first sentence is to be followed, at least outside the case of urgent necessity, which will be present if sanation in the root cannot easily be obtained, and from manifestation of the nullity of the Matrimony made to the other party, or from separation of the spouses, danger of grave evil, say of infamy, scandal, etc., is prudently feared. For then it will be lawful to use the second sentence, because in straits of this kind it is not prohibited to use an opinion even slightly probable, even with danger of the frustration of the Sacrament.¹ The present tenor of faculty XII of the schedule of the Sacred Penitentiary adds strength to this sentence: "And insofar as this certification" of the nullity of the Matrimony to the other party "cannot be made without grave danger, consent having been renewed according to the rules handed down by approved authors."

Quaer. 2° Must consent be renewed before the Pastor and witnesses?

Resp. 1° Affirmatively, if the impediment is public. The reason is, 1° because then the reason of removing or preventing scandal presses; 2° because the Briefs of the Dataria always thus require; 3° because otherwise the validity of the Matrimony could not be proved before the Church, since it is publicly established that the Pastor and witnesses were present only for the celebration of an invalid Matrimony, and thus the end intended by Trent would not be obtained; for the spouses could, after the Matrimony was clandestinely revalidated, separate, and with impunity enter new nuptials with others. Yet in this case the Ordinary can (and, when the impediment, at present occult, was therefore dispensed as public, or for the external forum, because it was prudently feared that it would become public, he must) not only dispense in banns, but also permit secret celebration in the Tridentine form, provided that afterwards (and likewise in the case in which what is now occult afterwards becomes public) scandal is removed by prudent divulgation. When nuptials have been contracted invalidly in a place where at least one of the two was not bound by the Tridentine law, secret renewal of consent, outside the case in which public renewal is imposed as a condition of the dispensation, is valid, and is even licitly permitted, if the other party, especially when non-Catholic, is unwilling to present himself or herself before a priest. But care must always be taken that scandal either not arise, or be removed by prudent divulgation.¹

Resp. 2° Negatively, if the impediment is occult. The reason is 1° because satisfaction has already been made to the law of Trent, or at least to its mind (namely, of meeting the inconveniences which arise from clandestine nuptials), through the presence of the pastor and witnesses in the Matrimony already contracted; 2° because otherwise infamy of the parties, scandal, and other inconveniences would follow; 3° because the practice of the Sacred Penitentiary, the Sacred Congregation of the Council, etc., thus bears. Thus against a few.² Yet if it can easily be done, it is sometimes usefully counseled that mutual consent be renewed at least before the confessor.

Quaer. 3° At least must a Matrimony, null because of an occult impediment, be revalidated before the Pastor and witnesses, if they at the time of Matrimony were conscious of the impediment?

Resp. The denying sentence seems more probable to St. Alphonsus. The reason is that the assistance of the Pastor and witnesses was prescribed by Trent, not so much for testifying to the validity of the Matrimony - which can be unknown to them in many ways - as for proving the external celebration of Matrimony, so that the danger may be met lest the same spouses enter other nuptials.

But the affirmative is also probable to the Holy Doctor; because the Pastor and witnesses, by assisting at Matrimony known to them as invalid, were witnesses only of the nullity of the Matrimony.³

Quaer. 4° In how many modes can the consent be renewed or exacted from the party ignorant of the impediment, after a dispensation has been obtained?

Resp. These are the principal modes assigned by various authors:

First Mode. If the spouse simply says: Our Matrimony is null because of some impediment; or: My confessor told me that it is null, ... and therefore let us renew consent.

Second Mode. If the spouse says: I did not have true consent when I contracted Matrimony; now I wish to furnish a new one. Do you also wish to furnish it? This mode is commonly admitted by authors, and rightly can be employed without a lie, since null consent is not true consent; and otherwise the spouse ignorant of the impediment thus sufficiently knows the nullity of the Matrimony.

Third Mode. If he says: I am troubled by scruples concerning the validity of our Matrimony, and therefore let us renew consent. This mode can be admitted according to the more common sentence with St. Alphonsus.¹ For it suffices that the other party place consent independent of the prior consent; but for this it is enough if he prudently doubts concerning the validity of the first Matrimony.

Various other modes are also presented by several Theologians; for example, if the spouse says to the other party: Say, I ask, if our Matrimony were null, would you not wish to contract again? Or: If you had not married me, would you not now wish to marry? etc. But deservedly those modes are rejected; because thus it is uncertain whether the other party intends to repeat consent into the preceding Matrimony, or rather to consent into a new one. Yet St. Alphonsus admits the former mode: Say, I ask, etc., in the case in which through it the other party would begin to doubt or suspect the validity of the Matrimony.²