Article Two. On Sanation in the Root.

665. Declaration. 1. Sanation in the root is dispensation from a diriment impediment which stands in the way of matrimony; when this has been granted, the supreme pontiff heals the matrimonial consent, truly but invalidly furnished, from nullity in such a way that he renders the matrimony valid and removes the effects of nullity.

The first example of a matrimony sanated in the root occurs under Boniface VIII (d. 1303); afterward invalid marriages were more frequently revalidated by this way, especially where many invalid marriages had to be convalidated at the same time.

a. Sanation of matrimony in the root must be understood in this way. The root of matrimony to be healed is consent. Now because of the diriment impediment which stood in the way from the beginning, the consent was invalid, and this invalid consent still endures. Now the supreme pontiff by dispensation removes the law invalidating the consent; when this has been removed, he heals the consent invalid at the beginning and renders it fit for effecting a valid matrimony. Ordinary dispensation does not concern the consent, but only removes the invalidating law; when this has been removed, power is given to the putative spouses to elicit a new and valid consent. But dispensation in the root concerns the consent invalid from the beginning, which, when the invalidating law has been taken away, it renders effective for producing the matrimonial bond. Moreover, by the same act of sanation, the supreme pontiff wills that the matrimony, as regards juridical effects, be held as if it had been valid from the beginning.

b. Sanation in the root, the diriment impediment having been removed by dispensation, has two proper effects: the convalidation of the matrimony and the legitimation of the offspring. The former is produced from now, i.e. from the day of the granted and applied sanation; the latter is produced from then, i.e. from the day of the contracted matrimony. But these two are not always granted together; for if either spouse has already died, legitimation is granted without convalidation, which is impossible. Likewise, while the spouses are living, it can happen that the matrimony is revalidated, but the legitimation of the offspring, if the offspring was procreated in adultery, is impossible.

c. From these things it is clear that there is chiefly a twofold difference between each species of revalidation: sanation in the root does not properly and necessarily require a new consent; the matrimonial bond arises from the first consent healed from inefficacy. But in revalidation made in the ordinary way, new consent must be formally furnished; the matrimonial bond arises from the new consent. Sanation in the root extends its effects even to past time; ordinary revalidation, however, only to future time.

2. By ecclesiastical use sanation is usually done without renewal of consent, especially where the putative spouses are ignorant of the nullity of their matrimony and cannot be admonished concerning it. Nevertheless the supreme pontiff sometimes prescribes a renewal of consent as a penalty, namely where one party acted in bad faith at the time of celebration. But if new consent is prescribed, it is necessary for the validity of the matrimony.

From these things it is clear that the sanation of matrimony can be done even with each party unaware, and in fact is done as often as harm is feared from admonition; for on the part of the spouses no act is required for sanation.

3. The power of sanating matrimony in the root belongs to the Roman pontiff alone. Nevertheless, in our times this power is also granted to bishops by special indult, especially in mission regions, "when it is discovered that there was present a diriment impediment over which they themselves can dispense from an indult of the Apostolic See, and that there would be great inconvenience in requiring from the innocent party a renewal of consent."

¹ Cn. 1138-1141.

666. Four conditions are required so that sanation in the root can be done:

1. That the impediment which stood in the way of the validity of the matrimony from the beginning be of ecclesiastical law, not of natural law or of divine law, because in these the Church cannot dispense.

It is manifest that the supreme pontiff cannot sanate a matrimony invalid because of an impediment of divine law which still endures. But if there stood in the way of the matrimony an impediment of natural or divine law which ceases of itself, e.g. the bond, he certainly could sanate the matrimony in the root after the impediment ceased; yet the Church does not sanate it, not even from the moment of the cessation of the impediment (cn. 1133, 2), as it seems, in punishment of the spouses. Thus, one who, during a legitimate matrimony, invalidly contracts another matrimony, after the prior spouse has died can obtain the convalidation of the second matrimony not through sanation in the root, but only through renewal of consent.

2. That in the beginning true consent was given; for the root of matrimony, or consent, is healed; but what in no way exists cannot be healed.¹

a. If one party only gave true consent and in good faith thinks the matrimony to be valid, his or her consent can be healed; but the other party must renew consent. If each spouse, knowing the nullity of the matrimony, contracted in bad faith, the matrimony cannot be sanated in the root, because no true consent was present.

b. Even civil matrimony can be sanated in the root from a just cause, and in fact, when a grave cause exists, it is usually sanated, provided that true matrimonial consent was given from the beginning. Besides a grave cause for granting sanation, two things are required in this case: that in contracting civil matrimony true matrimonial consent was present, and not only the intention of entering an illicit union or of living in concubinage; then, that in the case of the granted dispensation scandal be absent. Scandal will be absent if it is unknown that only civil matrimony had been contracted.

3. That the consent given in the beginning endures on the part of each; for matrimony begins to be valid through sanation. But a valid matrimony cannot begin except through mutual consent; yet consent is not renewed in sanation. Therefore it must at least endure.

a. The question whether consent must endure virtually, or whether it suffices if it endures only habitually, seems to be useless; for in spouses who cohabit and live a matrimonial life, it certainly endures virtually. Hence sorrow once conceived concerning the entered matrimony, or even repeated more often, does not stand in the way of sanation. Likewise, an interpretative intention of departing does not stand in the way of the required duration of consent, but only a positive will of dissolving the matrimony. Matrimony cannot be sanated when both spouses or either spouse is dead; but nothing prevents the matrimony of deceased spouses from being sanated as regards juridical effects, especially as regards the legitimacy of offspring.

b. If the matrimony was contracted in good faith on the part of each from the beginning, and afterward, when the impediment had been discovered, the spouses persevered in the matrimony against conscience, the matrimony can nevertheless be sanated in the root, provided the consent given at the beginning still endures.

4. That there be a proportionately grave cause. For although the sanation would be valid which the supreme pontiff granted without cause, nevertheless for the dispensation to be granted licitly there is required a cause which ought to be the graver, the greater the favor is which is granted by this dispensation.

In a fourfold case there is present a sufficiently grave cause, and therefore in this fourfold case sanation in the root can be sought:

a. if one party cannot be brought to renew consent and nevertheless wishes to remain in the matrimony;

b. if the nullity of the matrimony is known to one party only, and cannot be revealed to the other party without grave inconvenience;

c. if both spouses are in good faith and cannot be admonished concerning the nullity of the matrimony;

d. if many marriages are to be convalidated which cannot be convalidated by another way.

¹ Cn. 1141.

667. On procuring sanation in the root. If sanation is to be sought because of an occult impediment, these things are to be observed:

1. The sanation must be sought occultly and committed to execution occultly.

2. The confessor can procure it, if the impediment was detected in confession.

3. Recourse must be had immediately to the Holy See, and indeed to the Penitentiary, not to the bishop; although the letters (closed on account of the seal) can be directed through the bishop to the Holy See.

4. In the petition: a. the case must be accurately described, and in particular it must be expressed whether consent was present from the beginning and endures in each party, whether the spouses were in good faith; b. the mode of convalidation through sanation in the root must be sought, and the causes of dispensation must be indicated, especially the causes which demand sanation in the root; c. at the end the name of the confessor must be added, with the diocese and the place where he dwells, so that the rescript can be directed to him.

5. The execution of the dispensation, or the application of the sanation, is not properly required, nor in fact is any made, if each spouse is ignorant of the impediment. But if one party knows the impediment and is rightly disposed, the application is usually made in sacramental confession (but it could also be done outside confession), after absolution from sins and before the prayer Passio. For the rest, the rescript must be accurately observed.

Although no formula is necessary in executing the sanation of matrimony in the root, nevertheless this or a similar one is suitably employed: "By the apostolic authority granted to me, I heal in the root the matrimony contracted by you with N., and I declare legitimate the offspring received and to be received. In the name of the Father," etc.

6. If an impediment previously occult afterward becomes public, sanation in the root for the external forum (unless it was also granted for this forum) avails nothing; therefore a new one must then be sought.

Question Eleven.. On the Dissolution of Matrimony.

A twofold dissolution of matrimony, or separation of spouses, is distinguished: the one as to the bond (full), the other, with the bond remaining, as to cohabitation or as to table and bed (imperfect). The latter can be done either by mutual consent of the spouses or from a cause of one party, from which there is granted to the other party the right of departing. Each can be either perpetual or temporary. Concerning the dissolution of matrimony as to the bond through the Pauline privilege, through religious profession, and through dispensation of the supreme pontiff, it was said above (n. 496 ff.); concerning dissolution as to cohabitation, we must now treat.¹

Article One.. On Separation from Mutual Consent.

Spouses are bound to preserve an undivided association of life, unless a just cause excuses them.² The just causes of separation are those by which it happens that they can depart from one another licitly, whether perpetually or temporarily.

¹ In the old law separation of spouses is called divorce (divortium, from divertere), and indeed imperfect divorce, so that it may be distinguished from perfect divorce, which signifies the dissolution of matrimony even as to the bond. The new Code does not use this term.

² Cn. 1128.

668. Perpetual separation. 1. In a twofold case spouses can dissolve the association of life in perpetuity, if either spouse intends to enter religion or the man intends to receive sacred orders, since the Lord says: "Everyone who shall have left wife ... for my name's sake shall receive a hundredfold and shall possess eternal life."¹

2. That a spouse may enter religion or receive sacred orders, these conditions are required:

a. That the consent of the other spouse be present.

Religious profession is invalid not only if it is emitted by one spouse against the will of the other, but also if it is emitted by one spouse without the consent of the other. The spouse who has professed invalidly is bound to return to the other if the latter wills it. The sacred order which is received by a man against the will of his wife is indeed not invalid, but the man is bound to return to the wife if he is required by her.²

b. That dispensation of the Holy See be obtained. In the new law a state contrary to matrimony cannot be assumed without dispensation of the Holy See. For men having wives are simply impeded from receiving sacred orders;³ and spouses during matrimony cannot be validly admitted to the novitiate.⁴

¹ Matt. 19:29.

² Cf. Ferraris, Bibliotheca, word Coniux, n. 15 ff.; Ballerini-Palmieri V, n. 514.

³ Cn. 987.

⁴ Cn. 542.

669. Temporary separation. Spouses can separate for a time both on account of a supernatural cause, namely a greater perfection of spiritual life, and on account of a natural cause, provided it is honorable and truly grave, e.g. on account of business, studies, duties, and other things of this kind.

a. To this supernatural separation spouses can consent even with a vow of continence added; once this has been emitted, they ought to be separated from bed in order to exclude dangers. Because of these dangers separation is not to be permitted except for a time (in a novena, in preparation for feasts of the Lord or of the Blessed Virgin, in the time of Advent, in the time of Lent); therefore the Apostle adds: "And return together again, lest Satan tempt you because of your incontinence."¹

b. Since on account of long separation each spouse is exposed to great dangers, they are to be admonished not to separate except from a truly grave cause, and that the husband, as far as can be done, have his wife with him.

¹ 1 Cor. 7:5.