Article I. On the Revalidation of Marriage through Simple Dispensation

I say 1°. A simple dispensation removes the inability induced by law; conceded by one who enjoys legitimate power, it renders the person to whom it is given capable of entering marriage; and therefore it effects that consent furnished by the incapable person himself, and on that account ineffective, can now be effective. "As often as a law invalidates an act, it renders the will of the subject ineffective and impotent for contracting, for example, for transferring dominion, and this is to make the act incapable for contracting or ... for contracting thus." Examples: "the law makes ... a person incapable for some act in species," as one solemnly professed for contracting marriage; or it makes incapable relatively, "as, for contracting with a consanguineous woman"; or "it makes incapable for contracting thus," as happens in the Tridentine form. "And in all these cases the act itself is invalidated and the consent of the will is rendered ineffective for producing such an effect. But by this and not otherwise a person becomes incapable for the same effect." Suarez, De Leg. l. 5, c. 19, n. 4. A law invalidating surely does not remove the physical act of the will, but effects that that act or consent lacks juridical force for producing the contract. Therefore, when two consanguineous persons furnished conjugal consent, it is the law of the Church which rendered that consent ineffective; then by its dispensation it removes the ineffectiveness of the act, and the parties can now, because capable, enter marriage. But indeed the Church can so dispense in its invalidating law that all effects following from it are invalidated at the same time. And therefore, even without any renewal of consent, the marriage is immediately considered valid, and the other effects cease, as if it had been valid from the very beginning; the validity is from now, the legitimacy from then. That is to say, that consent, naturally sufficient, with the invalidating law of the Church removed and, by power of the same, the necessity of renewal removed, exercises its full effect of the act of the will and constitutes marriage. Such a dispensation is sanation in the root. Wherefore renewal of consent must not be called necessary from nature, but only from the law of the Church. When it removes the ineffectiveness of consent but demands its renewal for contracting marriage validly, its action is called a simple dispensation. - Cf. below n. 930.

I say 2°. Once a simple dispensation has been obtained, the party conscious of the impediment is now rendered capable for contracting and is bound by the law of the Church to renew consent. But if each party is conscious of the impediment, each must renew consent. When it is required that one, when that each party renew consent, will be said below in n. 929, Question 1.

I say 3°. Therefore there follows the necessity of that renewal, but from the positive law of the Church. But the Church requires that a new consent be furnished by the spouses knowing the nullity of the prior contract in the case of a marriage null on account of an impediment ceasing without dispensation. - Cf. above n. 927. Thus the S. Off. concerning the following case:

A certain Amalia, a non-Catholic not baptized, married John, a baptized heretic. During the marriage Amalia was baptized in some heretical sect and for some time lived maritally with John. Afterward, once the adultery of her husband had been known, she obtained a civil divorce. Finally she sought the faculty of entering second nuptials with a Catholic man. The S. Office on 8 Mar. 1899 responded: "A prior oath having been furnished by Amalia in the Curia NN, by which she declares that the marriage contracted with John after the baptism of Amalia herself was not ratified by the same persons knowing its nullity in a place where clandestine or mixed marriages are held valid, and provided that the Most Reverend Lord Archbishop is morally certain concerning the asserted ignorance of the spouses regarding the impediment of disparity of cult, let a document of liberty be given to the woman from the head of disparity of cult itself?" Cf. S. Off. 31 Aug. 1887; Pontif. Comm. for authentically interpreting the Code of Canon Law, 2-3 June 1918 - Card. Gennari, Consultazioni, v. 1, p. 633 - Card. Gasparri, De Matrimonio, n. 1138.

Question 1. Must consent be renewed before the Pastor and witnesses?

Resp. § 1. If the impediment is public, the consent must be renewed by each party in the form prescribed by law (Can. 1135).

The reason is both because then the reason for removing or preventing scandal urges, and because otherwise the validity of the Marriage could not be proved before the Church, since it is publicly established that the Pastor and witnesses were not present except at the celebration of an invalid Marriage, and thus the end intended by the Council of Trent would not be obtained; for the spouses, after the Marriage had been clandestinely revalidated, could separate and enter new nuptials with others with impunity.

§ 2. If it is occult and known to each party, it is enough that consent be renewed by each party privately and secretly.

§ 3. If it is occult and unknown to one party, it is enough that the party alone who is conscious of the impediment privately and secretly renew consent, provided the other perseveres in the consent furnished (Can. 1135).¹

The reason is that the Council of Trent, by prescribing the presence of the Pastor and witnesses, is deservedly presumed not to have wished to comprehend this case. For the Council wished only to meet the inconveniences which arose from nuptials celebrated secretly; but in our case the Marriage has already been publicly contracted, and therefore that danger is absent; therefore it suffices to place the new consent secretly. Besides, not only would extension of the law to this case be useless, but also harmful; indeed it would provide place for many scandals, expose the parties to defamation, and induce many other inconveniences. - Cf. S. Alphonsus, n. 1110.

¹ Cf. Addenda, p. 1138, n. 98.

Question 2. In how many ways can consent be renewed, or exacted from the party ignorant of the impediment, after a dispensation has been obtained?

Resp. These are the principal modes assigned by various authors:

I. If the spouse simply says: Our Marriage is null on account of some impediment, or: The confessor told me that it is null, and therefore let us renew consent.

II. If the spouse says: I did not have true consent when I contracted Marriage; I now wish to furnish new consent; do you also wish to furnish it? - This mode is commonly admitted by authors, and can rightly be applied without a lie, since null consent is not true consent; and on the other hand the spouse ignorant of the impediment thus sufficiently knows the nullity of the Marriage.

III. If he says: I am troubled by scruples concerning the value of our Marriage, and therefore let us renew consent. This mode can be admitted according to the more common opinion with S. Alphonsus; for it suffices that the other party place consent independent from the prior one; but for this it is enough if he prudently doubts concerning the value of the first Marriage.

Various other modes are also exhibited by many theologians, for example, if the spouse says to the co-party: Say, I ask you, if our Marriage were null, would you not wish to contract again? Or: If you had not married me, would you not wish to marry now? etc. But these modes are deservedly rejected, because thus it is uncertain whether the other party intends to repeat consent into the preceding Marriage, or truly to consent into a new one. - Cf. S. Alphonsus, n. 1117.