§ 1. Convalidation of Matrimony Invalid from a Diriment Impediment

244. • "For convalidating a matrimony void on account of a diriment impediment, it is required that the impediment cease or be dispensed, and that at least the party conscious of the impediment renew consent." (Can. 1133, § 1.)

Therefore a twofold condition is required for convalidation: cessation of the impediment and renewal of consent.

245. • a) Cessation of the impediment.

1. Convalidation is restricted to impediments which can be removed in one way or another. For if there is question of an immovable impediment, convalidation is impossible.

2. Sometimes an impediment ceases intrinsically, because the very fact which constituted the impediment no longer exists. Thus the impediment of age ceases by the flow of time, the bond is removed by the death of the spouse, disparity of worship ceases through the conversion of the unbelieving party, and raptus when liberty has been restored to the woman.

3. Sometimes it ceases extrinsically, through abrogation of the law. Thus several impediments of the former law ceased from the day 19 May 1918, because they were abrogated by the Code of Canon Law.

4. An impediment also can cease extrinsically through dispensation. We treated broadly above in Chapter VI concerning this manner of removing an impediment.

5. Let it be noted carefully that only then does the impediment which was the cause of nullity of the matrimony need dispensation, when it still persists.¹

¹ Cf. Vermeersch-Creusen, cited work, t. II, n. 449. - Capello, cited work, n. 844.

b) Renewal of consent.

246. • 1. Its necessity.

1. Renewal of consent is always required, at least with respect to the party conscious of the impediment. (Can. 1133, § 1.)

2. "This renewal is required by ecclesiastical law for validity, even if at the beginning each party gave consent and afterwards did not revoke it." (Ibid., § 2.)

247. • 2. Its nature.

"The renewal of consent must be a new act of the will into a matrimony which is known to have been null from the beginning." (Can. 1134.)

Therefore it is necessary that the other party or each party be warned concerning the nullity, and then that explicit renewal of consent be made by him or her.

248. • 3. Its manner.

The manner to be employed in renewal of consent must be various according to the various cases which can occur.

But there is a threefold hypothesis:

1. "If the impediment is public, consent must be renewed by each party in the form prescribed by law." (Can. 1135, § 1.)

1° "The form prescribed by law," whether ordinary or extraordinary, according to the circumstances, as was said above in Chapter VII.

2° If, however, the impediment is public by nature but in fact occult, a more or less secret form can be employed with permission of the Ordinary, by binding the witnesses to observe secrecy and even by celebrating the matrimony in private dwellings.²

² Vermeersch-Creusen, cited work, t. II, n. 451, I. - Capello, cited work, n. 845, 1°.

2. "If it is occult and known to each party, it suffices that consent be renewed by each party privately and secretly." (Can. 1135, § 2.)

In this hypothesis there is no need of the presence of a priest or witnesses. It suffices that each express consent by these or similar words: I receive you as husband, I receive you as wife.

3. "If it is occult and unknown to one party, it suffices that only the party conscious of the impediment renew consent privately and secretly, provided the other perseveres in the consent given." (Can. 1135, § 3.)

1° It is no longer necessary that the party who is ignorant of the impediment and nullity be warned.

2° Consent must be renewed explicitly, but this can be done in any way, even by an internal act alone.

3° The other party, unaware of the nullity, perseveres in the consent given in the celebration of matrimony until he or she has retracted it by a positive act of the will.

N. B. Let the parish priest or confessor take care, insofar as possible, that the putative spouses, or at least the party conscious of the nullity, be in the state of grace when they renew consent, because at that time they receive the sacrament.