Chapter VI: On The Revalidation Of Invalid Matrimony

2081. I. A matrimony is called INVALID when it is a conjunction of man and woman which indeed bears before itself the form of matrimony, but which, with consent lacking, or with some diriment impediment obstructing, does not have the substance of true matrimony. - In the external forum the ecclesiastical judge pronounces the nullity of matrimony, a process having been completed according to the paths of law.⁴³ In the internal forum, to declare a discovered nullity, unless prudence persuades otherwise, is the office of the confessor. But how cautiously one must proceed in a matter of this kind is declared by the most grave consequences flowing from a pronounced sentence; and hence it is why, in doubt, one must always stand for matrimony, and why in every difficult case counsel must be sought from the Ordinary, or at least from a learned and prudent man.

II. But when the invalidity of matrimony has been discovered, the CONFESSOR ought, according to the diversity of circumstances, either to permit the putative matrimony, or to urge separation, or to procure revalidation.⁴⁴

1. He ought to PERMIT the putative matrimony, if, the parties being in good faith, only a harmful remedy can be brought, i.e. a remedy from which greater evils, and first of all formal sins, would arise. Therefore in the case in which an occult but indispensable impediment obstructs the validity of matrimony, and in which the putative spouses cannot be separated without scandal and cannot cohabit without danger of incontinence, they are altogether to be left in good faith (cf. n. 1810, Rule 2).

2. He ought to URGE SEPARATION, if, the nullity of matrimony being manifest to each or to either party, revalidation cannot be had, or is rejected. - Sometimes juridical separation is required, which is made through the sentence of a judge declaring the nullity of matrimony. Sometimes separation from bed and habitation is to be made, under the species of divorce, namely if the nullity of matrimony cannot be proved, nor can revalidation be obtained, and cohabitation is judged not to be free from danger of incontinence. Sometimes separation from bed suffices, so that the putative spouses cohabit as brother and sister: and this remedy indeed is best of all, provided, which is rare, danger of incontinence threatens from neither side.

3. He ought to PROCURE REVALIDATION, whenever it can be obtained, and the parties do not contradict. But since revalidation, on account of dispensation to be obtained, demands some delay for itself, what is to be observed meanwhile must be indicated in a few words.

1. If the nullity of matrimony is public and notorious, separation as to bed and habitation is to be urged, until matrimony, dispensation having been obtained, can be revalidated publicly in Tridentine form. This is required from the necessity of avoiding scandal.⁴⁵

2. If the nullity is known only to the parties, separation from bed suffices, provided proximate danger of sinning is absent; otherwise, momentary separation from habitation, under an honorable pretext, for example of a journey, is prescribed.

3. If the nullity is known to only one party, this one, where no inconvenience underlies, should warn the coparty, and let them act as in the preceding case; or under some pretext let this party refuse the debt even with whatever inconvenience; since it is never licit to use matrimony while its invalidity is established. And meanwhile, every delay having been cast away, either simple dispensation is to be sought, if the party unaware can be warned; or dispensation in the root, if warning is foreseen as going to be impossible (cf. n. 2084).

4. If the nullity is known to neither party, and greater inconveniences are foreseen from warning, as for the most part they must be foreseen, the parties are to be left in good faith, until, through the confessor having obtained the necessary faculties, the nullity can both be declared and immediately healed. And in this way indeed one must always act when a spouse confesses a sin committed before the nuptials, from which the nullity of matrimony becomes known to the confessor alone (cf. n. 2041 and 2051).⁴⁶

The confessor should also take care that the spouses, at the time at which the matrimony is revalidated, be in the state of grace, since at that point of time they receive the Sacrament. - But, right disposition lacking, revalidation is not for that reason to be postponed, since a greater evil would generally come from postponement.

III. For the revalidation of matrimony two things are regularly REQUIRED: dispensation from the impediment, and new consent. - 1) As regards dispensation, the things which we warned above are to be attentively attended to in the petition (cap. IV, especially n. 2049, 10, and 2051, 6). - 2) New consent is to be furnished in Tridentine form, if this was omitted, or if the nullity is publicly established. Nor nevertheless are publications necessarily to be premised; it suffices if consent is renewed occultly before the parish priest and two faithful witnesses, provided scandal is forestalled through opportune divulgation. But if the nullity is occult, and the matrimony has already been celebrated in the face of the Church, it suffices that consent be repeated secretly, the Tridentine form being omitted. The reason is that the Council wills the presence of the parish priest and witnesses for proving the validity of matrimony according to external appearance; but since the matrimony first contracted is now externally reputed valid, the reason ceases why the aforesaid presence would again be required.⁴⁷ - And thus indeed the S. Penitentiary established from the oracle of St. Pius V, and it itself constantly held this manner of acting.

Moreover, the MANNER OF ACTING in the revalidation of matrimony depends on the nature of the impediment which obstructs validity, and which comes either 1. from defect of true consent, or 2. from defect of habilitation of the parties, or 3. from defect of the Tridentine form. - Therefore, concerning the diverse manner of revalidating, according to the diversity of impediment, some things are to be set down.