§ II. On the Revalidation of Matrimony with Dispensation in the Root

1635. - Dispensation in the root is the abrogation of an ecclesiastical law which introduced an impediment, in a particular case, joined with the rendering void of all effects which even before had followed from the law.

Therefore this dispensation produces its effect by removing from the midst the effects of the law, which, because of the nullity of the Matrimony, before the dispensation was granted, and even in the very act of contracting, were produced. - Thus Benedict XIV.³

Hence simple dispensation differs from dispensation in the root in this, that the former has its effect only from the time at which it is conceded, or from now, and therefore cannot exempt from renewal of consent. But the latter convalidates Matrimony from the time of Matrimony, or from then, not in this sense, that it effects that Matrimony, contracted nullly from the beginning because of an impediment, was not so contracted, but by removing from the midst those effects which, because of the nullity of a Matrimony of this kind, before the dispensation was granted, and even in the very act of contracting Matrimony, were produced (namely, defect of consent, nullity of the contract, illegitimacy of offspring, that is, its spiritual and temporal effects), so that, the defect of consent having been healed (which contract is the root), through a fiction of law [T. I. p. 478. col. 1. (6)] these effects before the Church are held as if they had never existed. Heiss, § 64. I.

1636. Principles. - I. The Church, or the Supreme Pontiff, can dispense in the root of Matrimony as regards all impediments of Ecclesiastical Law. The reason is, 1° because to dispense in the root is nothing else than to take away an impediment not only for the future, but also for the past, or to take away the effects which it produced, so that before the Church they are held as if they had never existed. But in these things there is nothing which exceeds the power of the Church. Therefore. 2° Because this is established and confirmed from the practice of the Church, which for several centuries has been accustomed to concede such dispensations. Boniface VIII is read to have dispensed thus first, in the year 1301; but in more recent times Pius VI, Pius VII, Leo XII, etc., dispensed more frequently in the same mode.

II. But four conditions are required so that Matrimony can be convalidated by the aid of dispensation in the root, namely:

1° That the conjunction of the spouses had an extrinsic species of just Matrimony, and was not manifestly fornicarious. Thus Benedict XIV. The same also Cardinal Caprara requires. The reason is to be sought, not from the essence of the thing, as some wish, but from the pontifical will, as the celebrated Feije proves by examples.¹ - But the extrinsic species of Matrimony is present even in nuptials which, in a place where the diriment law of clandestinity did not oblige one or the other, were contracted invalidly because of an occult impediment - whether before a civil magistrate, or before a minister, or in another mode attesting the intention of Matrimony. Indeed the extrinsic species of Matrimony cannot be excluded from those Matrimonies concerning which it is seriously doubted whether in the place of celebration they were bound by the Tridentine law, and which were contracted in one or another mode said above. Feije.¹

2° That the consent of each has persevered; for the Church cannot convalidate consent retracted even from one party only. Otherwise, not rarely the Pontiff requires in the Rescript that it be established concerning the permanent consent of each party. But if that is not required, it suffices that no argument of revocation of consent is had, concerning which inquiry must be made not imprudently.²

3° That an urgent and grave cause be present. But this can especially be had in a threefold case, namely: 1° when one party cannot be brought to renewal of consent, and nevertheless exhibits consent de praesenti of remaining in Matrimony; thus Cardinal Caprara; 2° when the impediment is known to one party only, which could not be manifested to the other without grave inconveniences; 3° when an urgent reason is present for not admonishing the spouses concerning the nullity of the Matrimony.

This third condition is not required for the validity of the dispensation, if the dispensation is knowingly conceded without it by the Supreme Pontiff; otherwise, if it is conceded by a Bishop from a particular Indult, as among us.

4° That there is question of an impediment of Ecclesiastical Law; "for the Pontiff cannot heal consent vitiated by an impediment of natural or divine law, for example, of bond. But if an impediment of this kind has supervened after Matrimony celebrated invalidly because of an ecclesiastical impediment, for example, perpetual impotence, nevertheless the Matrimony can be sanated in the root; for with respect to future Matrimony this impotence would be antecedent, but with respect to the one already contracted it is subsequent. It is indeed difficult to conceive sanation in the root, since Matrimony truly does not become valid except from now, or when the sanation is applied, and therefore the impotence can truly seem to precede the Matrimony; but the reason of explaining is to be sought from the peculiar nature of sanation in the root, by which consent once actually furnished is healed through the abrogation of the impediment from then. We have at hand a sanation in the root of this kind conceded by Our Most Holy Lord Pius IX in the year 1848. Nevertheless the parties certainly cannot use Matrimony." Thus the celebrated Feije.³

Note. - Although ordinarily sanation in the root is given for occult nullity, nevertheless in some very difficult circumstances, and certain conditions being posited, it is also conceded for public nullity.¹ See n. 1632. q. 3°.

1637. Questions. - Quaer. 1° Can dispensation in the root be obtained and applied, each party being ignorant of it?

Resp. Affirmatively. The reason is that knowledge of the dispensation is in no way required so that the Church can take away the effect of the law, or the obstacle which was standing in the way of the efficacy of consent; for the power of the Church is altogether independent of such knowledge. It is confirmed from the practice of the Church. For Clement XIII, as Collet reports, conceded to a certain Procopius (who seems to have been a Bishop) the faculty that he might sanate in the root, the parties not having been admonished, many Matrimonies entered invalidly because of too great an extension of faculties received. Other examples also of similar revalidation of Matrimonies are reported by others.

Quaer. 2° Can dispensation IN THE ROOT be conceded if both parties, when they contracted, knew the impediment?

Resp. 1° Negatively, according to the more common sentence, if the spouses in contracting clearly knew the nullity of the Matrimony. The reason is that, the invalidity of the Matrimony being known, true and properly so-called consent cannot be given into it, but only an intention of living in concubinage is had; and therefore consent cannot be healed, since from the beginning it was fictitious.

Resp. 2° Affirmatively, if the spouses in contracting, although they knew the impediment, nevertheless did not doubt that the Matrimony was null, or did not attend to its invalidity. Thus Cardinal Caprara seems to be understood, who supposes that dispensation in the root can be obtained for convalidating a clandestine Matrimony, when one party refuses to renew consent before the Church. In the same mode one seems to have to distinguish concerning Matrimonies contracted only civilly in places where the Tridentine Decree is in force.

Quaer. 3° Can a Bishop dispense IN THE ROOT, when he can dispense concerning diriment impediments from a particular Indult?

Resp. Negatively. The reason is that dispensation in the root requires greater power; and therefore it is not judged to be contained in other faculties. It is also proved from the practice of the Church, which always gives a special faculty when it intends to concede the power of dispensing in the root, as is given to our Bishops. See p. LXXIV. n. 6.

Quaer. 4° In what way is dispensation IN THE ROOT to be executed?

Resp. In the same mode as simple dispensation, adding in the formula the words: in the root. Thus, for example: "I, by Apostolic authority conceded to me, sanate and consolidate in its root the Matrimony contracted by you with N., and I declare legitimate the offspring received and to be received. In the name of the Father, and of the Son, and of the Holy Ghost." But no formula is had in the Roman Ritual. - But execution of this kind is not necessary per se. Hence it is to be omitted if it is better that neither spouse be made certain concerning the nullity of the Matrimony. Otherwise let it be done for the forum of conscience as regards that party which is conscious of the impediment and prepared to submit himself or herself to the execution of the dispensation; but publicly, or at least in such a way that it become publicly known, if the nullity of the Matrimony is public.¹

There are impediments which can cease by some fact. From the things said it is gathered, and in the following things it is more fully explained, in what way renewal of consent then ought to have place.

I. Concerning the case in which the impediment of fear ceases, the cause of fear having been removed, see n. 1599. I. Note, and n. 1630. q. 1°.

II. By change of domicile the impediment of clandestinity can cease, namely, when the parties celebrated clandestinely in a place where both were bound by the Decree Tametsi, and afterwards acquired domicile or quasi-domicile in a place where at least one party is not bound by it. In that case either sanation in the root is to be sought from the Holy See, if a sufficient cause is present (n. 1636. II. under 3°), or consent must be renewed, and this - by both or by one party only, according to the rules handed down in n. 1633 and 1634. q. 1° - publicly or occultly according as the circumstances (see n. 1634. q. 2°) demand either one; and, if there is question of a mixed Matrimony clandestinely contracted in a place where even heretics are bound by the Tridentine Decree, a dispensation concerning the impedient impediment of disparity of cult having been obtained. - Whether the nuptials of which there is question are convalidated by marital cohabitation alone, if the parties are ignorant of their nullity, is controverted. That the Apostolic See in practice applies the denying sentence is clear from the responses of the Sacred Office, 1842 and 1848, apud Perrone, De Matrim. Christ. Ed. Rom. T. II. p. 249-251.

If the parties have before contracted valid betrothals, and in the place where afterwards they obtained domicile or quasi-domicile they have had copula, there will be, for the external forum, presumed Matrimony. I say: "valid ... betrothals"; for invalid ones (for example, between a Catholic party and a heretical one) cannot induce a presumed Matrimony of this kind (n. 1525. § It is said: 5°; n. 1546. 3°. n. 1548 q. 1°. Note).

III. The diriment impediment of disparity of cult ceases through the reception of Baptism by the infidel party; in which case concerning the revalidation of Matrimony a determination must be made as above under II.

IV. By the death of the prior spouse the impediment of bond ceases between parties who, while that one was living, contracted. But nuptials in this case are not convalidated through sanation in the root, since this cannot be conceded while there is question of consent vitiated by an impediment of divine law, whether positive or natural (n. 1636 under 4°, compared with n. 1561 § The consent, p. 243 col. 2). Hence new consent is necessary, and that, according to the common doctrine (see Feije, n. 761) and according to the mind of St. Thomas,¹ must be furnished by each spouse, the party ignorant of the impediment having been certified,² publicly or secretly according as the circumstances (n. 1634. q. 2°) have demanded. - Note that in this case the impediment of crime can be present, namely when someone, while a legitimate consort was living, attempted and consummated Matrimony with another, each having previously known that bond.