Article II. On the Revalidation of Marriage through Dispensation in the Root

§ 1. Sanation of marriage in the root is the convalidation of the same, carrying with it, besides dispensation or cessation of the impediment, dispensation from the law concerning renewing consent, and retrotraction, by a fiction of law, concerning canonical effects, to the past.

§ 2. Convalidation is made from the moment of concession of the grace; but the retrotraction is understood to have been made to the beginning of the marriage, unless something else is expressly provided.

§ 3. Dispensation from the law concerning renewing consent can also be conceded with only one party or each party unaware (Can. 1138).

Dispensation, or rather sanation in the root, consists in this: that Marriage is revalidated by force of consent previously given. That is to say, the consent previously given therefore produced no effect, because it labored under some defect, which, since it was placed by the Church, nothing can or ought to impede from being removed by the Church itself. But with this defect removed, the consent as it were revives, or rather is sanated, and immediately Marriage arises. Therefore the difference between simple dispensation and dispensation in the root consists in this: that through the first the Church only removes the diriment impediment and thus renders the spouses capable for contracting; but through the other, besides the removal of the impediment, it accepts the consent previously given, proceeding to the very root of the Marriage; and consequently in the first case renewal of consent is required, and in the second it is not required. Behold therefore the process by which the Church sanates Marriage in the root: first it removes the impediment, which is supposed to be of ecclesiastical law; then it accepts the sanated consent by taking it in the very root; and because this acceptance now takes place, now Marriage properly begins; finally it annuls all juridical effects which flowed from that defective consent, and indeed from its very beginning, unless something else is expressly provided. - Cf. Benedict XIV, Institut. 87, n. 80; and de Synod. dioeces. lib. 13, cap. 21, n. 7. - Heiss, § 64. - Lehmkuhl, n. 828.

I say 1°. The Supreme Pontiff can sanate in the root all Marriages which are invalid by force of some impediment of ecclesiastical law. The reason is taken both from this, that according to the explanation lately given, nothing is had in a sanation of this kind which is repugnant to the matter or passes beyond the power of the Church, and because in fact for many centuries the Roman Pontiffs have been accustomed to concede such dispensations. Boniface VIII is read to have dispensed thus first in the year 1301; but in more recent times Pius VI, Pius VII, Leo XII, etc., dispensed more frequently in the same mode. - Cf. Benedict XIV, de Synod. dioeces. lib. 13, cap. 21, n. 7.

Sanation in the root can be conceded only by the Apostolic See (Can. 1141).

I say 2°. Three conditions are required so that Marriage can be convalidated by the help of dispensation in the root, namely:

1°. That the conjunction of the spouses have had the external species of a just Marriage: this condition either pertains to the very essence of the thing, namely if the matrimonial conjunction was openly fornicary and was apprehended as such by the spouses, for then necessarily the consent itself must have been lacking, namely the very root of the Marriage, as Benedict XIV speaks; or if true consent was present, because the spouses did not know the nullity of the Marriage, it must be said that this condition is required from positive Pontifical will for avoiding scandal. - Cf. Feije, n. 768. - Acta S. Sedis, vol. 1, Append. 7, p. 182.

Nevertheless this is not to be taken wholly strictly, for "for the effect of which there is question" (of sanation), says Benedict XIV, "it is enough that marriage was in fact contracted and that marital affection intervened." - Quaest. Can. 174.

2°. § 1. If consent is lacking in each or either party, marriage cannot be sanated in the root, whether consent was lacking from the beginning, or, furnished from the beginning, was afterward revoked.

§ 2. But if consent was indeed lacking from the beginning, but was afterward furnished, sanation can be conceded from the moment of furnished consent (Can. 1140).

Observe, however, that for destroying the force of consent previously given, a certain present wishfulness of departing in one or even in each spouse does not suffice, but a positive and absolute will is required. - Cf. Lehmkuhl, n. 831.

Real and moral perseverance of consent can be had in a co-party who, if conscious of the impediment, would be ready to dissolve the marriage; or who in the same ignorance sought separation from bed and cohabitation; or when two remain in marital life, as in a civil marriage, and one wishes to compose the matter before the Church and the other does not wish to do this.

3°. That an urgent and very grave cause be present. But this can be had especially in a threefold case, namely: 1°. when one party cannot be brought to renewal of consent, and nevertheless exhibits present consent of remaining in Marriage; 2°. when the impediment is known only to one party, and could not be manifested to the other without grave inconveniences; 3°. when there is an urgent reason for not admonishing the spouses concerning the nullity of the Marriage.

Observe, however, that only in this third case is there had a perfect sanation in the root; for when one of the spouses renews consent as is supposed in the first and second case, the sanation will be imperfect, namely on the part of only one spouse.

Question 1. Whether dispensation in the root can be given only for sanating a Marriage which is invalid by force of some impediment of ecclesiastical law?

Resp. Affirmatively, and the reason is that the Roman Pontiff can do nothing concerning impediments of divine or natural law, and consequently cannot sanate consent which was defective by such law. But if, some Marriage having been invalidly contracted by force of some impediment of ecclesiastical law, afterward another impediment of the law of nature, for example, of impotence, has supervened from the fact that the man, having received a wound, became absolutely incapable of the conjugal act, nevertheless the Church will be able to sanate that Marriage, and consequently legitimate the children who were born from the time of the celebration of the Marriage up to the reception of the wound, and remove the other effects of the nullity of the Marriage. The reason is taken from the very nature of sanation in the root. Cf. Feije, n. 769.

In this case rather only an imperfect sanation was given, namely the effect of the invalidity of the marriage was removed, and thus the offspring was made legitimate. According to the opinion now received, that marriage could not be sanated, because the party was incapable by the law of nature; but legitimation of the offspring was conceded.

Question 2. Can sanation of a marriage civilly entered be made?

Resp. It can be made. For these spouses can truly place conjugal consent which is ineffective, which, if it perseveres, can be sanated.

Question 3. Can any marriage invalidly entered be sanated in the root?

Resp. § 1. Any marriage entered with the naturally sufficient consent of each party, but juridically ineffective on account of a diriment impediment of ecclesiastical law or on account of defect of legitimate form, can be sanated in the root, provided consent perseveres.

§ 2. But a marriage contracted with an impediment of natural or divine law, even if the impediment afterward ceased, the Church does not sanate in the root, not even from the moment of cessation of the impediment (Can. 1139).

Question 4. Can there be sanated in the root a concubinary union, to which after many years civil marriage succeeded, in a case in which before this civil wedlock one party had been made impotent by a surgical operation?

Resp. "In the case set forth, sanation in the root cannot be conceded; and to the mind. The mind is that since the marriage cannot be revalidated, the putative spouses ought immediately to be separated. But if this is morally impossible, let them at least, with cautions applied, cohabit under the same roof as brother and sister. But as regards canonical legitimation of offspring, it can be conceded through a rescript of the prince duly to be expedited." Thus the S. Off., 8 March 1900. It is an example of offered legitimation of offspring for ecclesiastical effects.

Question 5. Can a dispensation in the root be obtained and applied with each party ignorant of it?

Resp. Affirmatively, altogether, because in no way is knowledge of the dispensation required in order that the Church can remove the effect of the law or the obstacle which stood in the way of the efficacy of consent; for the power of the Church is wholly independent of such knowledge. It is confirmed from the practice of the Church. For Clement XIII conceded to a certain Procopus, who seems to have been a Bishop, the faculty that he might sanate in the root, the parties not having been warned, many Marriages invalidly entered on account of excessive extension of the faculties received. Other examples also are reported by others concerning similar revalidation of Marriages. - Cf. Heiss, p. 246.

Question 6. In what way must a dispensation in the root be executed?

Resp. In the same mode as a simple dispensation, by adding in the formula the words in the root; wherefore it can be said thus: "I, by Apostolic authority conceded to me, sanate in its root the Marriage contracted by thee with N., and I declare the offspring received and to be received legitimate, in the name of the Father and of the Son and of the Holy Spirit." - I said, it can be said, because no formula is properly necessary, since none is prescribed in the Roman Ritual. - Cf. Heiss, § 64, n. III.

Note. If at any time it happens that one or each spouse, instead of sanation, seeks a declaration of nullity of Marriage, one must proceed altogether cautiously, whether as confessor or as Pastor, not only on account of civil laws and scandal which perhaps could arise from separation, but also because neither confessor nor Pastor has any power over a Marriage once celebrated, however certain its nullity may seem to them. Wherefore then recourse must be had to the special curia which recently among us has been instituted in individual dioceses for treating and resolving matrimonial causes. - Cf. Third Plenary Council of Baltimore, nn. 297, 304 and seq.; and Append., pp. 262 and seq.¹

¹ Cf. Addenda, p. 1091, n. 21.