Article II: On Sanation in the Root

— Notion. "Sanation in the root of a marriage is the convalidation of the same, carrying with it, besides dispensation from 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" (c. 1138, §1). Therefore, sanation in the root:

1. is contained under the common genus of convalidation, which supposes either cessation of the impediment or its dispensation, under which name here also comes dispensation from observing the solemn form;

2. has as its proper or specific thing a twofold effect, one connatural: dispensation from the law of renewing consent; the other artificial (which is ascribed to a fiction of law), by which canonical effects are considered to have been produced before the moment at which the matrimony began to be valid.

The convalidation itself cannot be earlier than the concession. But from what moment are the canonical effects computed? From the beginning of the matrimony, unless something else is expressly provided (c. 1138, §2).

And because no consent is to be renewed, the dispensation itself from renewing consent and the sanation in the root can be conceded while one party, or even both, are unaware.

— Necessary condition. 1. Of itself it is altogether required that naturally valid consent have been given from some moment, not necessarily from the very beginning, and that it have not been revoked before the sanation.

2. From the will of the Church it is necessary that the matrimony not have been contracted with an impediment of natural or divine law (c. 1139).

Excluded, therefore, from this benefit is the fairly frequent case of a marriage civilly contracted after civil divorce. Before the Code, it happened that the Sacred Penitentiary (April 25, 1890) sanated a marriage of this kind from the moment at which the impediment of the bond had been removed. Today this is opposed to the law of the Code. But the power of the Supreme Pontiff remains intact.

And the same must be said if an impediment of natural or divine law supervened upon a marriage which before was null on account of an impediment of ecclesiastical law alone. Indeed, as long as that impediment perseveres, there is no place for sanation. De Smet, n. 736, p. 202, note, alleges a case where perpetual impotence supervened upon a clandestine marriage.

— Power of sanating. Sanation in the root is reserved to the Holy See (c. 1141), which nevertheless concedes delegated power, for example through faculties conceded to Nuncios or Apostolic Delegates and to Ordinaries of places, especially in missions.

— I. Simple convalidation, the impediment having been removed, demands new consent from the party who is conscious of the nullity; and this, by ecclesiastical law, for validity.

Is the impediment public, whether by its nature or in fact: the consent must of itself be renewed in the form prescribed by law. Is it occult and known to both parties: it is enough that consent be renewed privately and secretly by both parties. If it is known to one party only, it is enough that this party renew consent. If it is known to neither, one or the other party must be made more certain concerning the defect, that he or she may renew consent. Before convalidation, the parties are to be warned, if it can be done, concerning having the state of grace.

II. Sanation in the root is the convalidation of matrimony which, besides dispensation from or cessation of the impediment, carries with it dispensation from the law concerning renewing consent, and whose canonical effects are considered to have been produced from the beginning of the matrimony, unless something else is expressly provided (c. 1138).

The essential condition is naturally valid consent given from some moment and persevering at the moment of the sanation.

And, from the will of the Church, it is necessary that the matrimony not have been contracted with an impediment of natural and divine law.