Article III: On Revalidating Matrimony Invalid On Account Of Defect Of The Tridentine Form

2088. Matrimony invalid ON ACCOUNT OF DEFECT OF FORM is sometimes convalidated by this very fact, that the betrothed legitimately withdrawn from the Tridentine law, namely through acquisition of domicile in a place where the law is not in force, formally renew consent, at least by signs, for example by living conjugally. Outside this case, the Tridentine form must be observed, or dispensation obtained. - But before all things one must weigh with what mind the spouses are, namely whether each party, or only one, or neither, is rightly disposed.¹²

1. If EACH of the contracting parties is rightly disposed, the Tridentine form is to be observed, either occultly, if the nullity of the matrimony is occult; or publicly, if it is public. - But if the Ordinary, on account of peculiar circumstances, has judged that it is expedient that matrimony be celebrated secretly before the parish priest and two witnesses, it will be able to be celebrated secretly: provided public scandal can be removed by another reason, and is removed as soon as possible (cf. n. 2080, Note).

2. If ONE of the contracting parties refuses to convalidate the matrimony in the face of the Church, it must be striven that this one, through a special procurator or letter, express consent in the present before the parish priest and witnesses, and thus the validity of the matrimony be provided for. If not even this can be obtained, but true matrimonial consent was in no way revoked, one must come to sanation in the root, with the conditions observed, as above (n. 2086).

3. IF NEITHER contracting party consents to revalidate the matrimony in legitimate form, there is no place for dispensation, since contumacious persons by no means deserve to feel the indulgence of the Church (cf. n. 2086, 2).

Note. 1. Nuptials revalidated, if the revalidation was public, are to be blessed again; because in truth they were never blessed; otherwise, if the revalidation was secret.¹³ 2. Public revalidation is INSCRIBED in the usual parochial book. - But if formerly the matrimony was already celebrated in Tridentine form, then either a new inscription is made with reference to the prior one, or the whole matter is duly annotated to this one. - Secret revalidation, if it is made in Tridentine form, is inscribed in the book of secret matrimonies; otherwise, no inscription is made.¹⁴

2089. Just as it is the office of the Church to establish those things which pertain to matrimony, as it is considered in itself and is one of the seven Sacraments, so there is a right in civil society to determine the CIVIL EFFECTS of matrimony. - To this pertain cases of dowry and of inheritance, likewise cases of succession, admission to or exclusion from public or private offices and duties, illegitimacy of offspring in the civil forum, and other things of this kind, which are found described in the codes of each nation or province.

The Church has never not recognized this authority of civil society; indeed she has even openly fought for it; and Pope Leo XIII most recently furnished this in the Encyclical Arcanum, with these words: "Likewise she, the Church, does not herself ignore, nor deny, that the Sacrament of matrimony, since it is directed also to the conservation and increase of human society, has cognation and relation with human things themselves, which indeed follow upon matrimony, but turn in the civil genus: concerning which things those who preside over the republic rightly decree and take cognizance."

But civil authority has not used equal equity toward the Church. For it not only did not recognize ecclesiastical authority, but even attacked it with sacrilegious daring, by issuing laws concerning things looking to the nature or validity of matrimony, concerning the firmness of the bond, concerning the form necessarily to be observed in contracting. Thence that pact which is called CIVIL MATRIMONY, which alone is held by the civil legislator as true matrimony, and which consists in the mutual consent of man and woman expressed according to the prescriptions of civil law.

Moreover these prescriptions of law look both to impediments, whether prohibiting or diriment, and to the form necessarily to be observed.¹ - It helps here to indicate in a few words those which are now more universally in force.

The PROHIBITING impediments received almost commonly are these: - 1) defect of denunciations in the civil forum; - 2) military condition, unless the one who presides over military matters grants permission; - 3) state of widowhood: namely a widow cannot pass to new nuptials except after ten months from the death of the prior spouse, or unless meanwhile she has given birth; for birth immediately removes the impediment.

Very many DIRIMENT impediments have been taken from ecclesiastical legislation, yet under a limitation to be recognized from civilists. They are the following: - 1) Force and fear; 2) error and madness, even if the madman has lucid intervals; - 3) defect of puberty, namely if the man has not yet completed eighteen years, the woman fifteen; - 4) bond, unless somewhere civil matrimony has been dissolved through legal divorce; - 5) consanguinity, affinity, and legal cognation: namely nuptials are prohibited between all ascendants and descendants, whether legitimate or natural; between brothers and sisters, whether legitimate or natural; between affines of the same degree; between paternal uncle and niece, and between maternal aunt and nephew; likewise between adopter and adopted and the descendants of the latter; between brothers and sisters from adoption; between adopter and the spouse of the adopted. [In the ITALIAN Code there is numbered besides: homicide, even merely attempted, which invalidates matrimony between the homicide and the surviving spouse of the one killed; likewise manifest, perpetual, and antecedent impotence. To the impediments mentioned there has been added almost everywhere another impediment, namely defect of consent of the parents, or of those who hold the place of parents, if the son has not yet completed the twenty-fifth year, the daughter the twenty-first.] - THE OTHER canonical impediments ARE NOT RECOGNIZED by the civil legislator, and obtain no force in the civil forum.

As regards the FORM of civil matrimony, the law prescribes that it be contracted publicly before a civil official and witnesses.

2090. From these impious laws, which plainly stand against canonical discipline, most mournful consequences flow, namely: Honors and advantages of true matrimony are attributed to this coupling of man and woman made against the laws of the Church, which therefore is nothing other than foul concubinage. On the contrary, civil effects are denied to true matrimony, i.e. matrimony contracted according to the laws of the Church, unless civil matrimony also accedes to it. Indeed, afterward the very liberty of contracting in the face of the Church is tyrannically restricted. But what must be done in these straits is taught by the S. PENITENTIARY in the Instruction given on 15 January 1866,² whose principal heads we judge opportune to report here.

I. From true doctrine concerning matrimony it is easily deduced that a civil act can in no way be held before God and his Church either as a Sacrament, or truly even as a contract; and therefore one would be a true concubinarian who should presume to persist in matrimony by force only of the civil act, and he is unworthy of absolution until he repents and, subjecting himself to the prescriptions of the Church, is converted to penance.³

II. "But although for the value of matrimony there is by no means need that it be ratified or confirmed by the civil power: nevertheless, for avoiding vexations and penalties, and on account of the good of offspring, which otherwise would by no means be held as legitimate by the lay power, and also for averting the danger of polygamy: it seems opportune and expedient that the same FAITHFUL, after they have legitimately contracted matrimony before the Church, present themselves, about to execute the act decreed by law, yet with this intention, as Benedict XIV teaches in the Brief Redditae sunt Nobis dated 17 Sept. 1746, that by presenting themselves to the Government official they do nothing other than execute the civil ceremony."⁴ There are not lacking authors who affirm that the aforesaid obligation must be fulfilled, in certain Kingdoms, under grave obligation, especially on account of the detriment which otherwise would threaten either the parties or the offspring.⁵ Yet one must say otherwise if the law somewhere has not yet obtained so great force.

III. "For the same causes, but by no means so that they may cooperate with the execution of the unhappy law, PARISH PRIESTS should not so easily and promiscuously admit to the celebration of matrimony before the Church those faithful who, because they are barred by law, afterward would not be admitted to the civil act, and therefore would not be held as legitimate spouses. In this matter, they will have to use much caution and prudence, and to seek the counsel of the Ordinary; and let him not be easy in assenting; but in graver cases let him consult this sacred Tribunal."⁶

IV. "But if it is opportune and expedient that the Faithful presenting themselves for performing the civil act prove themselves legitimate spouses before the law: nevertheless they ought by no means to perform this act before they have celebrated matrimony before the Church. And if some coercion or absolute necessity, which is not easily to be admitted, were the cause of inverting the order of this kind; then every diligence must be used that matrimony be contracted before the Church as soon as possible, and meanwhile the contracting parties remain separated."⁷

N.B. As regards SYNDICS and CIVIL OFFICIALS, see the things to be said in n. 2126 and 2291 sqq.

2091. IT IS ASKED. Whether merely civil matrimony produces no effect in the ecclesiastical forum?

Resp. Civil matrimony, although it lacks the nature of matrimony, nevertheless bears before itself a certain appearance and external form of the same; whence, if true matrimonial consent was present, it can attain validity through sanation in the root (cf. n. 2086). - Besides, it is some attempt at matrimony: and from this head it induces the penalties established against those attempting matrimony, and, adultery acceding, it produces the impediment of crime (cf. n. 2036). Yet from it there does not arise the impediment of public honesty (cf. n. 2034). - And these things indeed have force for places where the Tridentine law concerning the form of matrimony is in force; but in places where the said law is not in force, civil matrimony, true consent having been furnished, is to be held as clandestine matrimony.⁸