Article — Merkelbach, Summa Theologiae Moralis
Article I: On Simple Convalidation
929. Simple convalidation is that by which there is supplied that which was lacking from the beginning and rendered the matrimony invalid. It can be invalid from a threefold cause: a) from the incapacity of a person on account of a diriment impediment; b) from defect or vice of consent; and c) from defect of form. Hence there is a threefold diverse mode of revalidating matrimony.
930. Principle I. Convalidation of a matrimony void on account of an impediment. - "To convalidate 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." Thus can. 1133, § 1.
In the case a double condition is required for convalidation: the cessation of the impediment and renewal of consent.
A. Cessation of the impediment; whence convalidation is restricted to impediments which in the case can be taken away; otherwise it is impossible. An impediment can cease:
1° intrinsically, because the very fact which constitutes the impediment ceases to exist: thus the impediment of age ceases by the passage of time, ligamen is taken away by the death of the spouse, disparity of cult by the conversion of the unbelieving party, abduction by liberty being restored to the woman;
2° extrinsically, either a) by abrogation of the law: thus several impediments, abrogated by the code of law, ceased; or b) by dispensation obtained according to the norms indicated in the preceding question.
Let it be noted a) that the dispensation must first be sought before consent is renewed, because when the dispensation has been obtained the persons become capable of contracting validly;
b) that the impediment which was the cause of the nullity of the matrimony needs dispensation only when it still persists; whence, for convalidating a matrimony null on account of an impediment of the old law which has already been abrogated, it suffices to renew consent.
B. Renewal of consent to be furnished at least by the party conscious of the impediment: "this renewal is required by ecclesiastical law for validity, even if both parties furnished consent and afterward did not revoke it" (can. 1133, § 2).
From its nature "renewal of consent must be a new act of the will toward a matrimony which is known to have been null from the beginning" (can. 1134). Therefore it is required that one party or both be admonished concerning the nullity, so that, knowing the matrimony to be invalid, that party explicitly furnishes new consent; otherwise the renewal would be only a confirmation of the prior consent, ineffective for convalidating the matrimony.
2° "If it is occult and known to each party, it is enough that consent be renewed by each party privately and secretly."
3° "If it is occult and unknown to one party, it is enough that only the party conscious of the impediment renew privately and secretly, provided the other perseveres in the consent furnished."
Let it be noted: a) If the impediment, public by its nature, is occult in fact, a more or less secret form can be used with the permission of the Ordinary, by binding the witnesses to preserve secrecy and even by celebrating the matrimony in private houses.
b) If the occult impediment is known to each party, there is no need for the presence of a priest or witnesses; it suffices that each party express consent by whatever words signify it.
c) If the occult impediment is known to one party, it is not required that the other party, unaware of the impediment, be admonished: that party perseveres in the consent which was furnished in celebrating matrimony until that consent has been retracted by a positive act of the will; but the party conscious of the impediment must explicitly renew consent, in whatever explicit way, for which a merely internal act can suffice.
931. Principle II. Convalidation of a matrimony void on account of defect of consent. - "A matrimony void on account of defect of consent is convalidated if the party who had not consented now consents, provided the consent furnished by the other party perseveres." Thus from natural law and from can. 1136, § 1.
Hence 1° it is altogether required and suffices that the non-consenting party validly consent, and it is not necessary to admonish the other party, provided that party's previously furnished consent perseveres, not having been retracted, as was said in the preceding number;
2° if consent was lacking on each side, it must be furnished anew by each side, as if matrimony were being contracted for the first time; likewise if the party who had validly consented afterward formally retracted consent.
a) "If the defect of consent was merely internal, it is enough that the party who had not consented consent interiorly."
b) "If it was also external, it is necessary to manifest consent also externally, either in the form prescribed by law, if the defect was public, or in another private and secret way, if it was occult." In this latter case, the new consent can also be expressed by deed, as by cohabitation or conjugal copula had from the intention of consenting to matrimony.
932. Principle III. Convalidation of a matrimony invalid on account of defect of form. - "A matrimony null from defect of form, in order that it become valid, must be contracted anew in the legitimate form." Thus can. 1137.
In this form it must be revalidated publicly or secretly:
1° Publicly, if the nullity of the matrimony is publicly known, namely, to take away scandal; for this, however, it is not required that it be done in the highest degree of publicity: for special reasons the Ordinary can permit that the matrimony be celebrated privately, even at home, but before the pastor and witnesses who are to make the revalidation known, provided this suffices for removing scandal.
2° Secretly, yet before witnesses altogether trustworthy and who will preserve secrecy, if the nullity of the matrimony is occult or commonly unknown, namely, to forestall scandal and preserve the reputation of the spouses.
It can happen that one party refuses to contract in the legitimate form. a) If he only refuses to go to the church, but does not refuse to renew consent before the pastor and witnesses, they can be joined in the house or in another place to which they are prepared to go. b) If he refuses to appear before the pastor to whom the nullity is known, but is willing before the confessor, this confessor can be deputed to assist at the nuptials with two trustworthy witnesses. c) If he refuses to appear before the pastor or delegated priest and witnesses, care must be taken that through a proxy he express his consent before the pastor and witnesses. d) If he refuses even this, sanation in the root is to be sought, provided it is established that consent has not been revoked.