Article III: Concerning Sanation in the Root

252. • I. Notion.

a) "Sanation in the root of matrimony is its convalidation, bringing with it, besides dispensation from or cessation of the impediment, dispensation from the law concerning renewing consent, and retrotraction, through a fiction of law, concerning canonical effects, to the past." (Can. 1138, § 1.)

b) "Convalidation is made from the moment of the concession of the grace; retrotraction, however, is understood to have been made to the beginning of the matrimony, unless something else is expressly provided." (Ibid., § 2.)

1. Matrimony begins to be valid "from the moment of the concession of the grace," i.e.: if sanation is given in gracious form, as soon as the rescript is signed; but if in commissory form, as soon as it is committed to execution.

2. But the canonical effects are retrotracted by a fiction of law to the beginning of the matrimony, as if the matrimony had been valid from the beginning. Thus children born from such a matrimony are held as legitimate.

3. Sometimes retrotraction is had not to the beginning of the matrimony, but to some intermediate time, especially in a partial sanation which regards only offspring to be legitimated.

c) "Dispensation from the law concerning renewing consent can also be conceded, with only one party or with each party unaware." (Can. 1138, § 3.)

1. Even when one party is unwilling, sanation in the root can be conceded and sometimes is conceded.

2. Likewise when either or each party is deceased, if there is question of partial sanation.

3. Even when each party is unwilling, sanation can be conceded. In practice the Supreme Pontiff sometimes does this in a particular case, only if there is question of partial sanation with respect to canonical effects, e.g., for the good of the offspring. But general sanations sometimes conceded by the Pope touch all matrimonies, whether the spouses wish or do not wish their matrimony to be convalidated, provided the conditions required for sanation in the root are verified.¹

¹ Capello, cited work, n. 852.

253. • II. Conditions necessary for obtaining sanation in the root.

"Any matrimony entered into with the consent of each party naturally sufficient, but juridically inefficacious on account of a diriment impediment of ecclesiastical law or on account of defect of legitimate form, can be sanated in the root, provided consent perseveres." (Can. 1139, § 1.)

Therefore that canon requires three conditions so that sanation in the root can validly be conceded.

a) First, it is necessary that each party gave true and naturally, or of itself, sufficient consent, and did not revoke it.

1. It is altogether impossible for the Church to sanate a matrimony in which the very root to be sanated is wholly lacking, which is matrimonial consent. For without consent no matrimony can be conceived. (Can. 1140, § 1.)

2. Civil matrimony, if marital consent naturally sufficient truly was present, nothing prevents from being sanated in the root.

3. "But if consent indeed was lacking from the beginning, but afterwards was given, sanation can be conceded from the moment of the consent given." (Can. 1140, § 2.)

b) It is necessary that the cause of nullity of the matrimony be either an impediment of ecclesiastical law or defect of legitimate form.

1. But if there is question of an impediment of natural or divine law, the Church cannot sanate that matrimony in the root from the beginning of the matrimony. For neither can the Church by a fiction of law hold as valid a matrimony to which there stands opposed an impediment of natural or positive-divine law, which surpasses her power of dispensing.²

² Capello, cited work, n. 854.

2. From the time when an impediment of divine or natural law has already ceased, the Church indeed could sanate the matrimony. But in fact she does not concede even that partial sanation to such a matrimony.

"But a matrimony contracted with an impediment of natural or divine law, even if afterwards the impediment has ceased, the Church does not sanate in the root, not even from the moment of cessation of the impediment." (Can. 1139, § 2.)

c) Besides, a grave and urgent cause is required.

Such a cause is present when otherwise the matrimony cannot be convalidated in any way, or only with danger of grave harm.

254. • III. The authority competent to concede sanation in the root.

"Sanation in the root can be conceded only by the Apostolic See." (Can. 1141.)

a) The Supreme Pontiff ordinarily uses the organ of the Sacred Congregations to concede sanation in the root, or, if there is question of the internal forum, the Sacred Penitentiary, as was said for dispensations from impediments. Cf. above n. 182, the things said concerning the respective competence of the diverse Congregations and of the Sacred Penitentiary.

b) By indult of the S. C. de Prop. Fide, Ordinaries in places of the missions can sanate in the root matrimonies which are null on account of an impediment upon which they can dispense.

Moreover, faculty is conceded to them to sanate in the root mixed matrimonies contracted before a non-Catholic minister or civil magistrate.

c) Legates of the Holy See and local Ordinaries obtain faculties of sanating matrimonies in the root, circumscribed by a certain ambit.

255. • IV. Concerning the petition of sanation in the root.

a) According to the diversity of the case, let the petition be directed to the Holy Office, or the S. C. of the Sacraments, or the S. C. for the Eastern Churches, if there is question of the external forum, through the episcopal curia, or to the Ordinary; or to the Sacred Penitentiary, for the internal forum. Cf. the things said at nn. 198-203.

b) In the supplicatory libellus let those things be indicated which we mentioned above at nn. 204-206.

256. • V. Concerning execution.

Recall the things said in Chapter VI, Article V.

Let the parish priest or confessor take care insofar as possible that, at the moment of execution of the rescript of sanation, the spouses be in the state of grace, because at that moment they contract matrimony and receive the sacrament.³

³ Marc., cited work, n. 2087.