Chapter I. On the Convalidation of a Marriage Invalid on Account of a Diriment Impediment

I. Requisites for convalidation. From canon 1133, § 1, for convalidating a marriage void on account of a diriment impediment, there is required:

1. That the impediment cease, or be removed by dispensation.¹

2. That at least the party conscious of the impediment renew consent. Moreover:

a) Renewal of consent is required by ecclesiastical law for validity, even if at the beginning each party furnished consent and did not afterward revoke it (canon 1133, § 2).

b) Renewal of consent is required only by ecclesiastical law, but not by natural law. This is clear both from the practice of the Church sometimes remitting renewal of consent and from the fact that matrimonial consent furnished and enduring ought of itself, by the very fact that the impediment or obstacle is removed, to become efficacious.

Some except a marriage or matrimonial consent to which an impediment of natural or divine law stood opposed, and judge that a marriage of this kind cannot be convalidated except by the new consent of each party. But first, every intrinsic reason for admitting the aforesaid exception is lacking. Then the Sacred Penitentiary, in the Paris case, April 25, 1895, sanated in the root a marriage to which an impediment of natural law had stood opposed after the cessation of the impediment. Nevertheless, a difficulty arises from the fact that the Holy Office, March 2, 1904, declared: "A marriage contracted with an impediment of natural or divine law cannot be sanated in the root." But one can answer that, according to the mind of the Holy Office, that cannot be done insofar as the Church cannot remove an impediment of this kind; and this removal is the condition without which sanation cannot have place. Besides, de facto, if a marriage has been contracted with an impediment of natural or divine law, even if afterward the impediment has ceased, the Church does not remit renewal of consent, not even from the moment of the cessation of the impediment (canon 1139, § 2).

c) Renewal of consent must be a new act of the will toward a marriage which is known to have been null from the beginning (canon 1134). Therefore a new act of the will is required, and one independent of the prior consent, that is, not merely confirmatory of the prior consent, but posited with knowledge of the nullity of the marriage.

II. Form to be observed. 1. If the impediment is public, consent must be renewed by both parties in the form prescribed by law (canon 1135, § 1). If one party refuses renewal in the prescribed form, a dispensation from form should be sought; if one party refuses the very renewal of consent, either it should be petitioned that only one party must renew consent, or that sanation in the root be granted. Nevertheless, in individual cases scandal should be removed by making known the convalidation of the marriage.

2. If it is occult and known to both parties, it is enough that consent be renewed by both parties privately and secretly (canon 1135, § 2). If one party refuses renewal of consent, either it should be petitioned that only one party must renew consent, or that sanation in the root be granted.

3. If it is occult and unknown to one party, it is enough that the party conscious of the impediment alone renew consent privately and secretly, provided the other perseveres in the consent furnished (canon 1135, § 3). Moreover, as canon 1093 has it, although a marriage has been entered invalidly by reason of an impediment, the consent furnished is presumed to persevere until its revocation has been established.

¹ The impediments of age, abduction, bond, and disparity of worship can cease.