Article II: On Sanation in the Root

933. Sanation in the root is so called because it heals from nullity the root of matrimony, i.e., consent truly but nullly furnished, so that it renders the matrimony valid and takes away the effect of nullity. Namely, the consent, on account of some obstacle, was invalid from the beginning and endures invalid; but when the law invalidating the consent ceases or is relaxed by dispensation, the Church heals the consent invalid from the beginning and at the same time dispenses from the law of renewing consent; moreover, by a fiction of law she draws back the sanation to the moment of the consent furnished, so that the matrimony as to juridical effects is held as if it had been valid from the beginning and the impediment had never existed.

Hence can. 1138, § 1: "sanation in the root of matrimony is the convalidation of the same, carrying with it, besides the dispensation or cessation of the impediment, dispensation from the law of renewing consent, and retrotraction, by fiction of law, concerning canonical effects, to the past."

Therefore: A. Sanation in the root has two effects: the convalidation of the matrimony and retrotraction: "convalidation is made from the moment of the concession of the grace; but retrotraction is understood to be made to the beginning of the matrimony, unless something else is expressly provided" (can. 1138, § 2).

a) The matrimony begins to be valid, not indeed from the moment of celebration, as if for the time in which it was invalid it were now rendered valid, which is impossible; but from the moment of the concession of the grace, i.e., if the 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.

b) But the canonical effects are drawn back by fiction of law to the very beginning of the matrimony, as if it had always been valid; whence children born from such a matrimony are held as legitimate from the beginning of the matrimony.

c) Sometimes, however, retrotraction is not made to the beginning of the matrimony but to some intermediate time, especially in partial sanation which regards only offspring to be legitimated.

B. The matrimony is healed without renewal of consent; moreover, "dispensation from the law of renewing consent can also be granted with one party only or both parties unaware" (can. 1138, § 3), which is not repugnant, because a dispensation is the relaxation of an ecclesiastical law in a particular case; but a legislator can exempt someone from the law although unaware, indeed unwilling.

Nevertheless a) rarely does she grant sanation when one party is unwilling; b) she does, however, grant partial sanation, as to juridical effects, namely legitimation of offspring, when either or both parties have died, indeed even when both were unwilling; c) sanation properly so called or full sanation she does not grant in a particular case when both parties are unwilling, but general sanations have sometimes been granted for all matrimonies, even if the spouses are unwilling, provided the required conditions are verified.

934. Principle. Sanation in the root is not granted unless certain conditions are given. - According to can. 1139, § 1: "Any matrimony entered with the consent of both parties 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."

Therefore there is required:

1° Naturally sufficient consent of each party, so that each party has furnished true consent sufficient of itself. For the root of matrimony is marital consent, without which matrimony cannot even be conceived; and if this consent was present, it is sanable, but if it was not present, it cannot be healed.

Hence can. 1140, § 1: "if consent is lacking in one or both parties, matrimony cannot be sanated in the root...; but if consent was indeed lacking from the beginning, but afterward was furnished, sanation can be granted from the moment of the consent furnished." Hence civil matrimony also can be sanated, provided true matrimonial consent was present and not only the intention of entering an illicit union, but scandal must be absent.

2° An ecclesiastical invalidating law which rendered the consent juridically inefficacious or invalid, whether on account of a diriment impediment or on account of defect of the legitimate juridical form. If an impediment of natural or divine law is present, the Church cannot heal that matrimony from the beginning of the matrimony, because she cannot hold as valid a contract to which there stands in the way an impediment from which she herself cannot dispense; from the time when such an impediment has ceased, perhaps she can heal it, but in fact she does not, at least regularly.

Whence can. 1139, § 2: "But matrimony contracted with an impediment of natural or divine law, even if afterward the impediment has ceased, the Church does not sanate in the root, not even from the moment of the cessation of the impediment."

3° Persevering consent not revoked. For the validity of matrimony, both the capacity and the consent of those about to marry must stand together. By dispensation, indeed, the incapacity introduced by ecclesiastical law can be removed; but consent which, if it has been revoked, no longer perseveres when the incapacity is removed, cannot be supplied. Therefore it is altogether required that consent has not been revoked.

Hence can. 1140, § 1: "matrimony cannot be sanated in the root, whether consent was lacking from the beginning, or, having been furnished from the beginning, was afterward revoked."

Nevertheless consent is presumed to persevere unless the contrary is established; but in no way can it be judged to remain if either spouse has died or has fallen into perfect insanity, and therefore in these cases sanation in the root properly so called cannot be granted, although offspring begotten can be declared legitimate.

4° In addition, a grave and urgent cause. For sanation in the root is an extraordinary dispensation, which is not accustomed to be granted without a grave and urgent cause; indeed a bishop or another delegate who did this would act invalidly.

A grave cause can be: a) if a diriment impediment known to one party cannot be manifested to the other without great inconvenience; b) if the other party cannot be brought to renewal of consent, although willing to remain in the matrimony; c) if both spouses are in good faith, but for grave reasons cannot be admonished concerning the nullity of the matrimony.

935. Observations. - 1. "Sanation in the root can be granted only by the Apostolic See," can. 1141. It is unknown when sanation in the root began to be used; certainly, however, it is in use from the time of Boniface VIII. The Supreme Pontiff ordinarily uses the S. Congregation of the Holy Office, the S. Congregation concerning the Sacraments, or the S. Penitentiary, according to the diversity of cases; whence the petition is to be directed to them. Sometimes, however, the faculty of sanating certain marriages in determined circumstances is delegated to Ordinaries of places.

2. Sanation can be sought either by the other parties, or by either of them, or by a third person, for example the Ordinary or confessor, even with the parties unaware. Nevertheless it is not licit to have recourse to it except in the case in which simple convalidation is impossible in practice.

3. In the petition the case must be expressed accurately, especially whether consent was present from the beginning and endures in each party, whether the spouses were in good faith, and what are the causes which seem to demand sanation in the root.

4. Execution is not necessary if the nullity of the matrimony is unknown to the parties and cannot be revealed to them without grave inconvenience.