§ 3. On Radical Sanation

878. Notion. A radical sanation is a dispensation granted by the Supreme Pontiff whereby a matrimony hitherto invalid is rendered valid, and indeed, as regards canonical effects, not from the time the dispensation was granted but, through a fiction of law, from the beginning, and consequently all the canonical effects which had followed from the law invalidating the matrimony are removed.³⁰⁵ More briefly it is said: a radical sanation renders a matrimony hitherto invalid equally valid, as regards canonical effects, as if no diriment impediment had been present from the beginning. Wherefore, after a radical sanation, legitimation of the offspring born is no longer necessary; for through the fiction of law all this offspring is judged to have been born in legitimate matrimony.

From the things explained, the distinction between a simple dispensation and a radical sanation is readily understood. The former does not make the matrimony valid except by means of a renewal of consent; the latter does not require new consent, but renders legitimate the consent placed at the beginning.³⁰⁶ But if a renewal of consent is nevertheless sometimes required even in a radical sanation, this is accidental, namely, because one party was in bad faith from the beginning and perhaps never gave sincere consent. Another difference between these two dispensations is this: as regards canonical effects, a radical sanation renders the matrimony valid ex tunc, that is, from the beginning; a simple dispensation renders the matrimony valid ex nunc, that is, from the moment the dispensation was granted. But as regards the character of the sacrament and the other moral effects, both a radical sanation and a simple dispensation render the matrimony valid ex nunc.

³⁰⁵ Cf. Code of Canon Law, can. 1138.

³⁰⁶ Cf. Benedict XIV, De syn. dioec., bk. 13, c. 21, n. 7.

879. The proper nature of a radical sanation is explained in diverse ways. There are chiefly two explanations.

The first explanation, proposed by Perrone,³⁰⁷ Müllendorf,³⁰⁸ Riganti, and others, holds that through a radical sanation the matrimony becomes perfectly valid from the beginning, even under the character of a sacrament, and consequently with all effects, both moral and juridical. In order to explain this marvelous efficacy of a radical sanation, however, these authors assert that ecclesiastical legislation concerning the diriment impediments of matrimony is not wholly absolute but conditional. For example, the impediment of consanguinity ordinarily invalidates all marriages contracted between blood relatives; but if God through the so-called middle knowledge foresees that His Vicar on earth will sanate some particular matrimony contracted between blood relatives, He then holds that matrimony to be valid from the beginning and grants all sacramental graces.

This explanation was indeed set forth with the best intention and some ingenuity, but it entirely lacks every real foundation and brings no small inconveniences with it. For nowhere is even the least trace of this asserted conditional legislation found. Moreover, according to this explanation a radical sanation would be nothing other than a declaration by the Supreme Pontiff that the diriment impediments did not exist at the time of the celebration of this or that matrimony; which is certainly false.

The second and most common explanation asserts that through a radical sanation a matrimony which truly was null from the beginning is convalidated, so that it now becomes valid under the character of a sacrament, but all juridical effects are granted to the matrimony thus convalidated just as if it had been valid from the beginning. This explanation is also employed in the Decree Cum super of Benedict XIV, September 27, 1755: "Through it, namely, a radical sanation, it is not brought about that a matrimony contracted invalidly was not so contracted; rather, the effects which were produced because of the nullity of such a matrimony before the dispensation was granted, and even in the very act of contracting the matrimony, are removed from the midst." The same is established by the Code of Canon Law, can. 1138, § 2: "The convalidation of the matrimony occurs from the moment of the grant of the favor; the retroaction, however, as regards canonical effects, is understood to have been made to the beginning of the matrimony, unless something else is expressly provided." Therefore, since the pseudo-spouses receive the sacrament of matrimony at the moment of the radical sanation, let the confessor take care, according to his powers, that they are then in the state of sanctifying grace, lest they receive unworthily a sacrament of the living.

As regards the history of radical sanation, several things are still uncertain. Neither in the Decretals nor in the Summa of St. Raymond is mention made of radical sanation. Certain authors see its first traces in dispensations granted by Boniface VIII, who declared valid the marriages between Maria and Sanchez IV, the already deceased king of Castile, and between Ildephonsus, king of Portugal, and the countess of Poland, notwithstanding the diriment impediments.³⁰⁹ Benedict XIV clearly set forth the doctrine on radical sanation. At the time of the first French Revolution very many marriages were sanated in their root. Today a radical sanation is wont to be granted when a simple dispensation with renewal of consent is morally impossible.

The power of sanating a matrimony in its root belongs to the Supreme Pontiff alone,³¹⁰ who sometimes habitually delegates it to bishops residing outside Europe, but quite rarely to bishops of Europe.

Certain authors³¹¹ distinguish a perfect and an imperfect radical sanation. The former is had when, without a renewal of consent, the matrimony is convalidated with all juridical effects, and especially with the legitimation of all the offspring. The latter is had a) if renewal of consent is required on the part of one putative spouse; b) if, because of the death or insanity of one spouse, the matrimony indeed is not convalidated, but nevertheless all juridical effects are granted to it. This distinction is not of great utility. At least the latter mode would better not be called a radical sanation of the matrimony, because then it is altogether impossible to sanate the matrimony itself, as is self-evident. This mode is in reality nothing other than legitimation of offspring, which certainly can be accomplished without convalidation of the matrimony.

³⁰⁷ De matrim. II, 161 ff.

³⁰⁸ Pastor bonus XXII (1909), 412 ff.

³⁰⁹ Cf. Scherer, Kirchenr. II, 454.

³¹⁰ Code of Canon Law, can. 1141. A radical sanation for the internal forum must be sought from the Sacred Penitentiary, for the external forum from the Sacred Congregation of the Sacraments; but if it is a question of the impediment of disparity of worship, from the Holy Office, as will be said below.

³¹¹ Cf. Wernz-Vidal, Ius can. V, n. 659.

880. Four conditions required for a radical sanation.

1. That the diriment impediment in question not be of natural or divine law, but of ecclesiastical law, and indeed one of those from which the Church is accustomed to dispense.³¹²

Hence, a radical sanation is not granted if there stands in the way, for example, the impediment of error, the bond, or even lawful affinity in the direct line, the order of the priesthood, etc. Likewise, a sanation was denied in the following case: from a certain fornicarious union or concubinage, two children had been born; afterward the non-Catholic man was rendered perfectly impotent by a surgical operation; later he celebrated a civil matrimony with his concubine. A radical sanation was now sought. The Sacred Congregation of the Inquisition responded on March 8, 1900: "In the case set forth, a radical sanation cannot be granted." Why? In the first union an impediment of natural law stood in the way, namely, the defect of true matrimonial consent; in the second union or civil matrimony true consent was indeed present, but another impediment pertaining to natural law stood in the way, namely, physical impotence.

Similarly, a matrimony to which an impediment of divine law, for example, the bond, stands opposed cannot be sanated. Wherefore, if on April 25, 1890 the Sacred Penitentiary seems to have granted a radical sanation of a certain matrimony to which the impediment of the bond stood opposed from the beginning, but which afterward ceased through the death of the other party, this dispensation is by no means a radical sanation properly so called. For a) the matrimony was not convalidated from the beginning, but from the death of the other party; b) the legitimation of adulterine offspring was expressly denied. And indeed, if this dispensation had been a true and proper radical sanation, there would have been an open contradiction, namely, the Church would have admitted true polyandry. For the woman in question was living in a true matrimony with her first husband and at the same time, through a fiction of law, would be judged to have lived in a true matrimony with the adulterer. Therefore, the Code of Canon Law, can. 1139, establishes: "A matrimony contracted with an impediment of natural or divine law, even if the impediment afterward ceased, is not sanated in its root by the Church, not even from the moment the impediment ceased." In this case, therefore, the matrimony cannot be convalidated otherwise than by a renewal of matrimonial consent, as was explained above, § 1.

2. That true matrimonial affection or consent was present.

For if the contracting parties intended nothing other than mere concubinage, matrimonial consent itself was lacking, which the Church can supply by no dispensation. In other words: in order that a radical sanation be possible, it is required that the matrimonial contract would have been valid if an invalidating ecclesiastical law had not stood in the way. Therefore, a radical sanation is nothing other than a sanation of the root of the matrimony; moreover, the root of matrimony is matrimonial consent, which, if naturally valid consent was present, can be sanated; but if it was not present, neither can it be sanated, as is self-evident. For that which does not exist cannot be sanated. If only one of the putative spouses had true matrimonial affection, while the other intended nothing but the so-called "free union," the matrimony cannot even be convalidated unless the other afterward gives true matrimonial consent. But then this convalidation is not a radical sanation properly so called, as is evident from what was said above.

³¹² Code of Canon Law, can. 1139, § 2.

881. 3. That the matrimonial consent given at the beginning virtually endure at the moment of the sanation and not have been truly and efficaciously revoked by either party.³¹³

Thus teach all those who do not admit that unfounded explanation of the nature of radical sanation proposed by Perrone, Müllendorf, and others, which was already refuted above. The reason is obvious: for both the capacity and the consent of the persons about to marry must be present for the validity of matrimony. Although the incapacity of the persons about to marry introduced by ecclesiastical law can be removed through a dispensation, their consent can by no means be supplied if it was truly revoked or virtually no longer perseveres when the incapacity is removed. The style of the Curia also expressly requires this endurance of the consent of each party; for in Rescripts the clause is wont to be appended: "insofar as each party perseveres in present consent"; likewise the Code of Canon Law, can. 1139, § 1. In practice, matrimonial consent is presumed to persevere unless the contrary is manifestly established. In particular, a revocation of consent is not present:

a) if the party ignorant of the impediment would be ready to dissolve the matrimony because of domestic quarrels or other reasons;

b) if the party ignorant of the impediment has already sought divorce as regards bed and habitation. The reason for these two cases is that the question is not what the ignorant party would do if he knew the impediment, but what he in fact does. Moreover, in fact it is not established that the party has retracted the matrimonial consent previously given;

c) if both spouses have indeed known the nullity of the matrimony for some time but nevertheless continue to live together maritally.³¹⁴

In no way, however, can consent be said virtually to remain if either spouse is dead or has fallen into complete insanity; wherefore, in these cases a true radical sanation properly so called cannot be granted, although offspring received can be declared legitimate.

4. That there be a grave and urgent cause.

For a radical sanation is an extraordinary dispensation which is not wont to be granted without a grave and urgent cause. Hence, a bishop or other delegate who granted a radical sanation without a grave and urgent cause would act not only illicitly but also invalidly. Grave causes of this kind are:

a) if a diriment impediment, for example, crime, which is known to one party cannot be manifested to the other party without great inconvenience;

b) if one party cannot be induced to renew consent, although that party wishes to remain in the matrimony;

c) if both spouses are in good faith but, because of grave reasons, cannot be admonished concerning the nullity of the matrimony, nor is it advantageous to leave them in good faith;

d) if many marriages are null which cannot be convalidated otherwise than through a radical sanation. For this reason Pius X, in the Constitution Provida, sanated in their root all mixed and non-Catholic marriages in Germany which had been invalidly contracted before April 15, 1906, because of a defect of the Tridentine form, provided that no other diriment impediment stood in the way and that the mutual consent of the spouses had persevered up to the stated day.

³¹³ Code of Canon Law, cann. 1139 and 1140.

³¹⁴ Cf. Wernz-Vidal, Ius can. V, n. 666, note 34.

882. Petition and execution of a radical sanation. Since a radical sanation can be obtained and applied even without the knowledge of the pseudo-spouses,³¹⁵ anyone can seek it. Ordinarily, however, it belongs to the parish priest or confessor to seek and execute this sanation. In the petition all those things which pertain to the nature of the impediment must be explained, just as is done in seeking a simple dispensation. Then the reasons, from the four recounted above, must be adduced why not a simple dispensation but a radical sanation is sought. If it is a question of an occult impediment, as more commonly happens, the petition is to be directed to the Sacred Penitentiary. But if a public impediment is present, it is preferable to seek the sanation, through the episcopal curia, from the Sacred Congregation of the Sacraments, or, if it is a question of an invalid matrimony of mixed religion or disparity of worship, from the Holy Office.

In executing the sanation obtained, diligent attention must be given to the clauses placed in the Rescript. In the confessional, for the fulmination of the sanation, this or a similar form can be employed: "By apostolic authority specially committed to me, I sanate in its root your matrimony with N., invalidly contracted because of the existence of such an impediment, for example, crime, affinity, etc.; wherefore the offspring received or to be received is legitimate. In the name of the Father and of the Son and of the Holy Spirit. Amen." Because the putative spouses ought to be in the state of grace when the sanation is committed to execution, for they then receive the sacrament of matrimony, this execution must be made after sacramental absolution, insofar as this is possible.

³¹⁵ Cf. Code of Canon Law, can. 1138, § 3.

883. Corollary. From the things said thus far, it is useful to gather briefly the effects of a radical sanation.

1. At the moment when a radical sanation is granted, the matrimonial contract becomes a true sacrament of the New Law, unless, however, one spouse is a non-baptized unbeliever. The matrimonial contract by no means becomes a sacrament from its first beginning; and therefore formal sins which perhaps were committed by the pseudo-spouses before the sanation through intercourse exercised in bad faith are not removed nor rendered not to have been committed.

2. All the effects of ecclesiastical law are attributed to the matrimony thus sanated in the same manner as if it had been valid from the beginning. Hence, the most perfect legitimation of the offspring born is granted. For the offspring is regarded in the same manner as if born in a legitimate matrimony. Therefore, offspring thus legitimated can receive not only sacred orders but also ecclesiastical dignities. It is indeed exceedingly fitting that such legitimated offspring should also be regarded as legitimate before civil law, with all the rights of legitimate children; but a radical sanation does not of itself yet confer such civil rights. Hence, for example, if the civil law of some region excludes offspring of this kind from hereditary succession, it is not permissible to employ occult compensation.³¹⁶

³¹⁶ Cf. Wernz-Vidal, Ius can. V, n. 671, note 44.

884. Scholion. On illegitimate children. Since in the course of the treatise on matrimony discussion often occurs concerning the legitimation of offspring, legitimate and illegitimate children must be treated briefly here. St. Thomas³¹⁷ teaches: "The state of children is fourfold: for some are natural and legitimate, such as those born from true and legitimate matrimony; some are natural and not legitimate, such as children born from simple fornication; some are legitimate and not natural, such as adopted children; some are neither legitimate nor natural, such as spurious children born from adultery or defloration."

In the ecclesiastical forum, according to the discipline now in force, the following are held to be legitimate children:

All who are conceived or at least born from a valid or putative matrimony. Children begotten after solemn profession or the reception of sacred order are excepted, namely, children of those who indeed contracted a valid matrimony but afterward emitted a solemn vow of chastity or received sacred order and nevertheless begot children.³¹⁸ Children who were born at least six months after the day the matrimony was celebrated, or within ten months from the day conjugal life was dissolved, are presumed legitimate.³¹⁹ This presumption, however, can be overcome by proof of the truth.

All other children are illegitimate and are wont to be distinguished as natural and spurious. Natural children are those who indeed were begotten outside matrimony but by persons between whom a valid matrimony could have existed at the time of conception, pregnancy, or birth; or more briefly: natural children are children born from simple fornication. Spurious children are those whose parents, at the time of conception or birth, were incapable of contracting matrimony because of a diriment impediment existing between them. Spurious children are wont to be subdivided into: a) adulterine, who were begotten from adultery; b) sacrilegious, either or both of whose parents were bound by a solemn or solemnized vow of chastity; c) incestuous, whose parents were blood relatives or relatives by affinity in the collateral line; d) nefarious, who were begotten by blood relatives or relatives by affinity in the direct line; e) those who were begotten by persons held by the impediment of age or disparity of worship.^319a

The legitimation of illegitimate children can be obtained in three ways:

1. Through a subsequent matrimony, whether true or putative, newly contracted or convalidated, natural children are legitimated, but not spurious children.³²⁰ Such legitimated natural children, as regards canonical effects, are in all things made equal to legitimate children unless something else was expressly provided,³²¹ for example, as regards the cardinalate, can. 232, § 2, and the episcopate, can. 331, § 1.

2. Through solemn profession in religious orders, or through simple profession in certain religious institutes having a special privilege,³²² there is obtained by that very fact the legitimation of both natural and spurious children, but only for receiving sacred orders, not for accepting dignities.³²³

3. Through a dispensation granted from a diriment impediment, whether by ordinary power or by delegated power through a general indult, for example, one granted to all priests who dispense in danger of death or in another urgent case, but not through a Rescript in particular cases, the legitimation of offspring is also granted by that very fact, except, however, adulterine and sacrilegious offspring.³²⁴

4. Through a Rescript of the Supreme Pontiff, all illegitimate children, even spurious children, can be legitimated as regards canonical effects;³²⁵ but whether such perfect legitimation according to all canonical effects was in fact granted must be seen from the Rescript of the Supreme Pontiff itself.

The legitimation obtained must be noted in the baptismal register.

³¹⁷ Suppl., q. 68, a. 1.

³¹⁸ Code of Canon Law, can. 1114; c. 2, X, 4, 17.

³¹⁹ Code of Canon Law, can. 1115, § 2.

^319a Pontifical Commission, December 6, 1930 (Acta Apost. Sed. XXIII, 25).

³²⁰ c. 3, X, 4, 17; Benedict XIV, Constitution Redditae, December 5, 1744; Code of Canon Law, can. 1116.

³²¹ Code of Canon Law, can. 1117; Sixtus V, Constitution Postquam, December 3, 1586.

³²² Gregory XIII, Constitution Ascendente Domino, May 25, 1584.

³²³ c. 1, X, 1, 17; Code of Canon Law, can. 984, n. 1.

³²⁴ Code of Canon Law, can. 1051.

³²⁵ Cf. St. Thomas, Suppl., q. 68, a. 3, and Benedict XIV, loc. cit.