Question Five: On the Convalidation of Matrimony

927. Convalidation of matrimony is that act by which matrimony entered invalidly is rendered valid; just as an invalid contract which receives value is said to be convalidated.

Matrimony entered either in good or in bad faith can be invalid on account of a vice, defect, or impediment. This can be met: a) by procuring a declaration of nullity from ecclesiastical authority and separation of the spouses, which nevertheless is to be restricted to strictly necessary cases, for example when both spouses or either spouse in no way wishes to cohabit with the other party or wishes to enter another matrimony, when the matrimony is foreseen to be unhappy or to carry with it danger of perversion, or when the nullity of the matrimony cannot be healed, nor are greater inconveniences feared; b) by permitting the putative spouses to continue to cohabit as brother and sister, which is rarely expedient because of the danger of incontinence; c) by dissimulating the nullity and leaving the spouses in good faith, which is not licit except for a grave and urgent cause; d) ordinarily, however, by convalidating the matrimony.

In practice, Noldin observes, Th. M. III, n. 657, the confessor must take care lest he incautiously declare the nullity of a matrimony.

1. If the impediment is indispensable and known to neither party, let him prudently consider whether he can admonish them concerning the nullity and separation; if they can neither be separated without scandal nor cohabit without danger of sinning, let him leave them in good faith.

2. If an indispensable impediment is known to one or both, the spouses are altogether to be separated. What kind of separation is to be urged depends on the circumstances, namely:

a. If the nullity of the matrimony can be juridically proved, they are to be separated perfectly by the sentence of an ecclesiastical judge; unless, however, to avoid scandal or infamy, they wish to cohabit as brother and sister and can do this without danger of incontinence.

b. If the nullity of the matrimony cannot be juridically proved and from cohabitation danger of incontinence arises, they are to be separated under the appearance of divorce from bed and cohabitation.

c. If from cohabitation there does not arise danger of incontinence, it suffices that they be separated from the common bed and cohabit as brother and sister.

3. If the impediment is dispensable, revalidation must regularly be procured; in the meantime, however, until the matrimony can be revalidated after a dispensation has been obtained, these things are to be observed:

a. If the nullity of the matrimony is publicly known, the spouses are to be separated from bed and cohabitation until a dispensation from the impediment is obtained.

b. If the nullity of the matrimony is known only to both parties, it must first be requested that they abstain in the meantime; this will not be very difficult if after one or a few days a dispensation can be had, as, for example, in the place of the episcopal curia or near it. Permission must be sought to conduct the matter outside confession and to approach the Ordinary. If there would have to be a long wait with danger of incontinence, which could not be avoided by a practical remedy or subterfuge, or if permission to act outside confession were not given, the confessor should dispense according to can. 1045, § 3 (n. 922, 2°).

c. If the nullity of the matrimony is known to one party only, this party should admonish, when it can easily be done, the other party to abstain in the meantime; if this cannot be done, the same procedure is followed as above, under b; after the dispensation, the renewal of consent by the conscious party suffices.

d. If the nullity of the matrimony is known to neither party, the confessor should prudently deliberate whether he can admonish the spouses without greater evils following; if he can admonish them, let him proceed as before; if he cannot admonish them, they are to be left in good faith until a dispensation is obtained and the matrimony can be convalidated.

928. There is a twofold mode of convalidation: simple convalidation and sanation in the root, between which there is a twofold difference:

a) simple convalidation always requires that consent be renewed; sanation in the root is made without renewal of consent;

b) simple convalidation regards the future; sanation in the root also exerts force into the past, insofar as by a fiction of law it is drawn back as to canonical effects.

Concerning each mode one must speak. But since through the revalidation of matrimony between Christians, in whatever way it is done, the sacrament is administered and received, care must be taken, as far as possible, that the spouses be in the state of grace when the matrimony is revalidated, i.e., when consent is renewed or sanation in the root is applied.