Question Ten. On the Revalidation of Matrimony.

661. Declarations. 1. It can happen that a matrimony contracted either in good faith or in bad faith afterward, on account of an occult impediment, is found to be invalid. The means of arranging the matter in this case is either a declaration of nullity and separation of the spouses, or cohabitation as brother and sister, or dissimulation, or else the revalidation of the matrimony.

2. The revalidation of matrimony is that act by which a matrimony hitherto invalid is rendered valid; for if a contract hitherto invalid receives value, it is said to be revalidated. A twofold revalidation of matrimony is distinguished: the one is called simple revalidation, the other sanation in the root.

a. Between each mode of revalidation this chief difference exists: in convalidation a renewal of consent is required, but in sanation matrimony becomes valid without renewal of consent.

b. Since by the revalidation of matrimony a sacrament is administered and received, as far as can be done care must be taken that the spouses be in the state of grace when the matrimony is revalidated, i.e. when the consent is renewed or the sanation is applied.

What a confessor must do when he notices that some matrimony is invalid. He must beware lest he incautiously at once declare the nullity of the matrimony.

1. If the spouses are in good faith and greater evils would follow from a declared nullity of the matrimony, they are to be left in good faith.

This must be observed not only where the impediment which is detected is occult and indispensable, and therefore the spouses can neither be separated without scandal nor cohabit without danger of sinning, but also where there is question of an occult and dispensable impediment; for morally it cannot be hoped that the putative spouses will not use the matrimony, and therefore an admonition would effect this, that from material sinners they would become formal sinners.

2. If the nullity of the matrimony is known to both, but revalidation cannot be obtained, the spouses must be separated entirely. But what separation is to be urged depends on the circumstances, namely:

a. If the nullity of the matrimony can be proved juridically, they must be separated perfectly by sentence of the ecclesiastical judge.

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

c. If no danger of incontinence arises from cohabitation, it suffices that they be separated from the common bed and cohabit as brother and sister.

3. If the matrimony can be revalidated, this ought to be procured as soon as possible; meanwhile, however, until the matrimony can be revalidated after the dispensation has been obtained, the following things must be observed:

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

b. If the nullity of the matrimony is known only to both parties, and no danger of sinning arises from cohabitation, it suffices that they be separated from bed; but if the danger of sinning exists, they must also be separated from cohabitation under some pretext, e.g. of a journey.

c. If the nullity of the matrimony is known only to one party, this party must admonish the partner, if this can be done, that he or she abstain from the use of matrimony. If he cannot admonish the partner without danger of grave evil and there is not time to wait for the dispensation, the parish priest or confessor has power to dispense from the impediment, so that the party conscious of the impediment can renew consent in order to convalidate the matrimony and render the debt.

Until now this case in practice was of such great difficulty that most authors probably thought that the ecclesiastical law with so great an inconvenience did not oblige, and consequently that the impediment ceased; now every difficulty vanishes through this power of dispensing granted by cn. 1045, 2, 3.

d. If the nullity of the matrimony is known to neither party and admonition is foreseen to be harmful, they are to be left in good faith until the dispensation is obtained and the matrimony can be convalidated.

Article One.. On Simple Revalidation.

Through simple revalidation matrimony is convalidated by this, that what was lacking from the beginning and made the matrimony invalid is supplied. Now matrimony can be invalid from a threefold defect: from a defect of capability in the persons because of a diriment impediment; from a defect of consent; and from a defect of form. Therefore there is a threefold different mode of revalidating an invalid matrimony.

662. Revalidation from defect of capability. If matrimony is invalid because of a diriment impediment which can be removed by dispensation, first the dispensation must be sought; once it has been obtained, the persons are capable of contracting. And if the consent furnished by them at the beginning persists, from the nature of the thing nothing now prevents the matrimony from becoming valid without renewal of consent.¹ But the Church does not recognize this consent as valid unless either each party or at least the party conscious of the impediment has renewed consent, and indeed in such a way that a new act of the will is posited, by which he or she again consents to the matrimony,² knowing that it had hitherto been invalid; otherwise the renewal would be nothing except a confirmation of the previous consent, ineffective for convalidating the matrimony. The renewal must be made according to the following rules:³

1. If the impediment is public, the consent must be renewed by both parties in the form prescribed by law, i.e. before the parish priest and witnesses, so that the convalidation is publicly established.

2. If it is occult and known to both parties, it is sufficient that the consent be renewed by each party privately and secretly.

3. If it is occult and unknown to one party, it is sufficient that only the party conscious of the impediment renew the consent privately and secretly, provided the other perseveres in the consent already furnished.

a. By the old law dispensation from an occult impediment was granted only on this condition, that the other party ignorant of the impediment be made certain concerning the nullity of the matrimony. Yet since the party ignorant of the impediment often could not be made certain of this without great difficulty, and since this making certain itself was required only by positive law and not from the nature of the thing, it is no longer required by the new Code (cn. 1135, 3).

b. If the party ignorant of the impediment can be admonished concerning the nullity of the matrimony without difficulty, it is better that he or she be admonished and that both renew consent together. The difficulties which frequently stand in the way of admonition are these: that the party would be vehemently saddened; or that the party would come to knowledge of the crime because of which the matrimony is invalid; or that the party would no longer consent to the matrimony if he or she knew its invalidity.

c. If both parties or either party cannot be brought to contract again publicly, the parish priest, with the license of the ordinary, can carry out the matter occultly, provided scandal is removed; but if not even this can be obtained, sanation in the root must be sought.

d. The consent furnished at the beginning is presumed to endure unless it has been expressly revoked.⁴ It is renewed privately and secretly either through an internal act or through conjugal life continued with this intention.

¹ Cn. 1138, 2.

² Cn. 1134.

³ Cn. 1135.

⁴ Cn. 1093.

663. Revalidation because of defect of consent. If matrimony is invalid because of a defect of consent, whether because consent was furnished fictitiously, or from error, or from fear, nothing else is required for its convalidation except that a new consent be formally furnished either from each party or at least from one party, and indeed:

1. If consent was lacking from each party, it must be furnished formally by each party, as if the matrimony were first being contracted.

Since the matrimony was entered in the due form, and moreover the persons were capable, and only the consent was invalid, of itself it suffices that each party consent to the matrimony either through a merely internal act or also through an external act (cohabitation, conjugal copula).

2. If consent was lacking from one party only, this party certainly must supply it; and it suffices that one party add his or her consent to the consent of the other, which at the beginning was true and valid and morally still endures, without the other party being admonished concerning the nullity of the matrimony.

a. There are those who say that the renewal of consent furnished by each party is necessary even in this case, but undeservedly; for matrimony follows the nature of a contract, and for contracting validly it is not required that each party elicit consent at the same time in act, but it suffices that the consent of one still morally endure when the other formally elicits consent. This is confirmed by the new Code.¹

b. If the consent furnished at the beginning has been retracted by the other party, the matrimony can be convalidated only by the consent of each. But for retracting consent a positive act of the will is required; an interpretative revocation, or a disposition of mind by which he would retract consent if the nullity of the matrimony were known, does not suffice.²

3. The defect of consent can be merely internal or also external.

a. If it was merely internal, it is sufficient that the party who did not consent inwardly consent.

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 manner if it was occult.

In this latter case it is necessary that the consent be expressed by some sign; but it can be expressed either by words or by deeds, namely by cohabitation or by conjugal copula with the intention of consenting to matrimony. But consent must be manifested in the form prescribed by law, i.e. a new celebration of matrimony is necessary, if the defect is known to so many persons, under the new law at least two, that the nullity of the matrimony could be proved in the forum. For since the matrimony is void before the Church, it must be convalidated in the forum of the Church.³

¹ Cn. 1136, 1.

² Cn. 1093.

³ S.C.C., 2 Aug. 1907; Cn. 1137.

664. Revalidation because of defect of form. 1. If matrimony is invalid because it was contracted clandestinely, it must be convalidated by this, that the consent is renewed in the prescribed form, unless a dispensation from this law is given, which is very rarely granted.

2. If the nullity of the matrimony is publicly known and the contracting parties do not refuse to present themselves publicly before the parish priest and witnesses, consent must be renewed publicly in order to remove scandal; but if the nullity of the matrimony is occult, it suffices that consent be renewed secretly before the parish priest and two witnesses in order to prevent the infamy of the spouses.

The publicity of the renewal can be greater or lesser. The supreme degree of publicity is had if the customary proclamations have been premised before the matrimony is celebrated anew. Such publicity is of itself necessary where the nullity of the matrimony has become notorious. Yet if sufficient reasons counsel lesser publicity, dispensation from the proclamations can be sought, and the ordinary can permit the renewal of consent to be made either in the parish house or in the house of the spouses before the parish priest clothed with no sacred vestment and two witnesses, who will be able to promulgate the revalidation if there is need.

3. If either both parties or one party cannot be brought to appear before the parish priest and witnesses for renewing consent, one must proceed in this way:

a. If one party only refuses to appear before the parish priest and witnesses, care must be taken that this party express his or her consent before the parish priest and witnesses through a procurator or by a letter directed to him who by law assists at the matrimony. But if not even this can be obtained, sanation of the matrimony in the root must be sought, provided it is established that the matrimonial consent has not been revoked.

b. If each party refuses to appear before the parish priest and witnesses, nothing can be done except that prayers be poured forth for their eternal salvation; for for those who are contumacious against the laws of the Church, the favor of dispensation or of sanation in the root is not to be sought.

c. If one party or each party refuses only to go to the church, but does not refuse to renew consent before the parish priest and witnesses, they are to be joined in their house or in another place to which they are prepared to go.

Note. Marriages which were contracted invalidly because of an impediment abrogated by the new Code remain invalid even after the Code began to exercise its force, and therefore they need revalidation. But since the impediment has already lost its force, renewal of consent suffices for convalidation.

The abrogated impediments are these:

1. Consanguinity in the fourth degree of the collateral line.

2. Consanguinity in the second and third, etc., because the spouses descend several times from the same stock.

3. Affinity from illicit copula.

4. Affinity from matrimony in the third and fourth degree of the collateral line.

5. Public honesty from valid betrothals.

6. Public honesty from a ratified only matrimony.

7. Spiritual kinship from confirmation.

8. Spiritual kinship between the baptizer and the parents of the baptized.

9. Spiritual kinship between the one lifting and the parents of the one lifted.

10. Legal kinship in Austria and Germany.