Revalidation of an invalid marriage

It is certain, 1. that a marriage invalid through defect of consent alone can be revalidated by the simple renewal of consent.

It is certain, 2. that renewal of the consent of each party is required if neither truly consented, and at least of the one who did not consent if there is only one. Concerning several matters, however, there is controversy; hence:

Questions. - QUESTION 1. Must consent be renewed by both parties if only one consented fictitiously or under compulsion?

Reply. Negatively. The reason is that the consent of the other, having been truly placed, perseveres so long as it has not been positively retracted. Thus the Theologians commonly; and St. Ligorius, no. 1114, calls this opinion the truer one, that is, morally certain.

Some nevertheless affirm, although their opinion does not otherwise appear probable. But in practice it is preferable to choose the safer counsel and, insofar as it can be done without inconvenience or danger, care must be taken that consent be elicited from both.

QUESTION 2. Must consent be renewed before the Pastor and witnesses?

Reply. Negatively. This is apparent from the practice of the Church and the common opinion, namely, because of the inconveniences which would follow from that obligation.

Vol. II, Treatise on Matrimony, Ch. VII, Article II. On the Revalidation of a Marriage Invalid Through Defect of the Prescribed Form

- I. It is certain that a marriage invalid by reason of clandestinity must be entered before the Pastor and witnesses, unless a dispensation from the law of the Council of Trent is obtained from the Supreme Pontiff, which otherwise is rarely granted. For that law obliges until it has been fulfilled, since it is a condition sine qua non required in every case for the validity of marriage, unless recourse to the Pastor is impossible, as was said above where the impediment of clandestinity was treated.

II. If both spouses do not refuse to present themselves before the Pastor, the marriage must be revalidated before him either publicly or secretly, according as the nullity of the marriage was public or occult. The reason is that, in the former case, scandal must be removed; but in the latter it must be forestalled and the reputation of the spouses preserved.

This is further confirmed from the Declaration of Cardinal Caprara, legate a latere in France, in the Instruction on the revalidation of invalid marriages. For thus he says: 6. If the nullity of the marriage is occult, or commonly unknown, the marriage must be contracted secretly before the proper Pastor, with at least two trustworthy witnesses employed, in order to avoid scandals; the entry is then to be recorded in the book of secret marriages. 7. If the nullity of the marriage is public, the marriage must be celebrated publicly, with the form of the Council of Trent observed, in order to remove scandal. But if the Ordinary, on account of particular circumstances, shall judge it expedient that it instead be celebrated secretly before the proper Pastor and two witnesses, it can be celebrated secretly, provided, however, that the public scandal can be removed in another manner and is removed as soon as possible.

Various difficulties occur, however, if one party consents to contract before the Pastor and the other refuses, or if both are badly disposed. Hence:

Questions. - QUESTION 1. What must be done if one party or both consent to renew consent before the Pastor, but refuse to go to the church?

Reply. They must be joined in their own home or in another place chosen by them, provided grave witnesses are present, by whose aid the convalidation of this marriage can be made public if this is necessary for removing scandal, namely, if the invalidity of the former union is notorious.

QUESTION 2. What must be done if one party refuses to contract before the Pastor?

Reply. Cardinal Caprara responds thus in the cited Instruction: If the refusal arises from ignorance or some error contrary to the laws or doctrine of the Church concerning impediments which invalidate marriage, let the refusing party be instructed with due prudence and in charity. And insofar as the party still refuses to convalidate his marriage in the face of the Church, then pains must be taken that he appoint a special proxy who may contract the marriage in his name in the customary manner; or at least that, by consent de praesenti expressed through a Letter directed to the proper Pastor or to another Priest having the permission of the Ordinary or Pastor, the marriage be renewed.

- QUESTION 3. What if the indisposed party is unwilling to contract even through a proxy, etc.?

Reply. The same Cardinal Caprara responds thus:

If the things prescribed thus far can by no means be obtained, and one party cannot be brought to carry out the celebration of the marriage according to the things handed down above ..., we judge that recourse can be had to a dispensation in the root of the marriage, or to the sanation of the marriage in the root, so that at least the salvation of the soul of the innocent party, the legitimacy of the offspring, and the tranquility of the families may be fully provided for, and the salvation of the soul of the refusing party also may be provided for as soon as possible.

QUESTION 4. What if neither party consents to contract marriage anew?

Reply. Nothing at all is to be done here and now, since no dispensation is granted by the Church in such a case. It remains, therefore, that the Pastor devote himself to fervent prayer, frequently commend the most wretched concubinaries to God, and strive with assiduous care to procure their conversion.

Vol. II, Treatise on Matrimony, Ch. VII, Article III. On the Revalidation of a Marriage Invalid Through the Incapacity of the Parties

To revalidate a marriage invalid through an ecclesiastical impediment, before all else a dispensation from the impediment must be obtained. It is given in a twofold kind, namely: 1. a simple dispensation, or one in the customary manner; 2. a dispensation in the root of the marriage.

Vol. II, Treatise on Matrimony, Ch. VII, Art. III, § I. On the Revalidation of Marriage in the Ordinary Manner

n. 895.

- I. Rule. If each spouse is aware of the impediment, each is bound to renew consent, after the dispensation has been obtained, in order to revalidate the marriage. The reason is that knowledge of the nullity of the marriage because of a known diriment impediment had necessarily excluded true consent in the preceding contract of marriage.

n. 895.

II. Rule. If only one party knew the impediment, that party is certainly bound to renew his or her consent, at least alone and separately. This follows from what has just been said.

n. 895.

III. Rule. The party ignorant of the impediment would not necessarily have to renew consent for the validity of the marriage if the impediment regarded only the other party. The reason is that the consent of the former was valid from the beginning and therefore perseveres; hence renewal of the consent of the incapable party would suffice. Thus, if a member of the faithful had married an unbaptized woman who was ignorant of the impediment, it would suffice, after the infidelity ceased or a dispensation was obtained, that the faithful spouse renew consent; because the consent of the unbeliever was valid, since the Church could not impress a personal incapacity upon her.

Questions. - QUESTION 1. Must the party who is ignorant of the impediment necessarily renew consent for the valid restoration of the marriage?

Reply. There are two probable opinions:

I. OPINION. It commonly affirms. The reason is: 1. because the impediment removes the efficacy of consent from the beginning; therefore it remains inefficacious, and consequently can produce no effect, since it perseveres in the same manner in which it was given. A simple dispensation, however, does not heal the defect which preceded, but only renders the parties capable of consenting in the future. 2. Because this clause is customarily added in the Rescripts of the Sacred Penitentiary: The other party having been informed of the nullity of the prior marriage. Therefore, etc. - Sanchez, Sylvius, Navarrus, etc.

II. OPINION. It denies. The reason is that the prior consent, although it lacked its effect because of an impediment imposed by positive law, was nevertheless valid by natural law, since it was given to a person capable of contracting by natural law. Therefore, once the impediment is removed, the prior consent suffices, which virtually perseveres in its effect through conjugal intercourse, cohabitation, or other external signs. Therefore, when the internal consent of the spouse aware of the impediment is added, expressed at least through similar external signs, the consent of both is united and the marriage is convalidated. Nor does the clause of the Sacred Penitentiary stand in the way, for it is judged to be added not as a true condition but as a simple instruction; because otherwise this condition would often be frustrated. - The Salmanticenses, etc.

Nevertheless, in practice one must not depart from the first opinion unless a dispensation in the root is obtained, at least outside a case of urgent necessity. But if the case is urgent and a dispensation in the root cannot easily be obtained, it will be licit to use the second opinion; because in straits of this kind it is not forbidden to use a probable opinion even with the danger of frustration of the Sacrament ¹. An urgent necessity is present when, from manifesting the nullity of the marriage to the other party or from the separation of the spouses, danger of death or grave infamy or scandal can prudently be feared. Thus St. Ligorius, nos. 1114, 1115.

¹ Say rather that the Sacrament is not then frustrated; for it is a question of matter in which the Church can supply. And since in the case it is not permissible to have recourse to the same Church, while otherwise the contracting parties act according to a probable opinion, it must be held that the Church in fact supplies.

n. 897.

- QUESTION 2. Does the renewal of consent presuppose knowledge of the nullity of the marriage?

n. 897.

Reply. It appears that one must affirm with the more common opinion. The reason is that renewal of consent must necessarily proceed from the intention of effecting a marriage; but one who believes that the prior marriage was valid does not will to effect a marriage, but only renews and ratifies the marriage previously entered. And since that marriage was invalid, the marriage cannot be convalidated through consent of this kind. This must especially be affirmed if it is a question of a spouse who is presumed likely to dissolve the marriage if he knew of the nullity. For then he would be judged to say that he wills the marriage, but the one which existed from the beginning, and not another. - See St. Ligorius, ibid.

n. 898.

- QUESTION 3. Must consent be renewed before the Pastor and witnesses?

n. 898.

Reply 1. Affirmatively, if the impediment is public. The reason is: 1. because the reason of removing or forestalling scandal then presses; 2. because the Briefs of the Datary always require it in this manner; 3. 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 secretly revalidated, could separate and enter new marriages with others with impunity.

n. 898.

Reply 2. Negatively, if the impediment is occult. The reason is: 1. because the law of the Council of Trent then appears already to have been sufficiently fulfilled through the presence of the Pastor and witnesses at the first marriage; or because the Council of Trent, in prescribing the presence of the Pastor and witnesses, is rightly presumed not to have wished to include this case. For the Council wished only to meet the inconveniences which arose from marriages celebrated secretly; but in our case the marriage has already been publicly contracted, and therefore that danger is absent. It is sufficient, therefore, to place the new consent secretly. 2. Because an extension of the law to this case would be not only useless but also harmful, since it would furnish occasion for many scandals, expose the parties to defamation, and induce many other inconveniences; therefore, etc. 3. Because it is proved from the constant practice of the Sacred Penitentiary, the Sacred Congregation of Cardinals, and other tribunals. - St. Ligorius, no. 1110, and others commonly against a few.

- QUESTION 4. Must at least a marriage null because of an occult impediment be revalidated before the Pastor and witnesses if they were aware of the impediment at the time of the marriage?

Reply. Negatively, more probably. The reason is that the assistance of the Pastor and witnesses was prescribed by the Council of Trent not so much for attesting to the validity of the marriage, which can be unknown to them in many ways, as for proving the external celebration of the marriage, so that the danger that the same spouses might enter other marriages may be forestalled.

Sanchez with La Croix and several others, however, probably affirm, says St. Ligorius; because the Pastor and witnesses, by assisting at a marriage known to them as invalid, were witnesses only of the nullity of the marriage.

Vol. III, Pt. II, Tr. X, Ch. IX, Article V. On the Convalidation of a Matrimony Invalidly Contracted · Vol. III, Pt. II, Tr. X, Ch. IX, Art. V, § 1. On the Convalidation of a Matrimony by Renewal of Consent · Vol. III, Pt. II, Tr. X, Ch. IX, Art. V, § 2. On the Convalidation of a Matrimony by a Simple Dispensation

In practice, apart from grave difficulty, the safer part should be followed. Otherwise this case is scarcely probable as regards practice.

n. 900.

- QUESTION 5. In how many ways can consent be renewed or elicited from the party ignorant of the impediment after the dispensation has been obtained?

…and 10 more passages — all of them are listed on the topic page.

Bucceroni, Institutions of Moral Theology

Gennaro Bucceroni, S.J. — 1 passage (filed under the subtopics)

Vol. IV, On Marriage, IV. On Dispensation from Impediments and Revalidation of Marriage

n. 1050.

What about revalidation because of defect of personal incapacity? If marriage must be revalidated because of the incapacity of a person, by reason of some diriment impediment which is dispensed, dispensation from the same impediment must certainly be sought. If each spouse is conscious of the impediment, each is bound to renew consent, after dispensation has been obtained for revalidating the marriage. The reason is that knowledge of the nullity of marriage because of a known diriment impediment had easily excluded true consent in the preceding contract of marriage. Cf. 1033.

If only one party knew the impediment, that party is bound to renew his or her consent, at least alone and separately. This follows from what has just been said.

The party ignorant of the impediment would not necessarily have to renew consent for the validity of the marriage if the impediment regarded only the other party. The reason is that the consent of that party was valid from the beginning, and therefore perseveres; therefore renewal of consent of the incapable party would suffice. Hence, if a believer had married a non-baptized woman who is ignorant of the impediment, it would suffice, when infidelity ceases or dispensation is obtained, that the believer renew consent; because the consent of the unbeliever was valid, since the Church could not impress personal incapacity upon her. L. 1114; St. Thomas, Suppl., q. 47, a. 4, ad 2. Cf. Monit. Eccles., vol. 11, p. 24 ff., p. 105 ff. Nevertheless, from various decisions of the Holy Office, if each party in the case was ignorant of the impediment, and the unbelieving party received baptism, and the marriage is not ratified by them, knowing its nullity, in a place where clandestine or mixed marriages are valid, the marriage remains invalid, although they persevere in conjugal cohabitation. Holy Office, May 8, 1899. In finding the reason for this Resolution, the same difficulty appears as in the preceding case, as can also be seen from the following question. The reason is brought forward that the consent which is gathered from marital custom arises from error, namely that the prior consent is judged to have force. But if this were true, whenever marriage had been contracted invalidly, marriage could never be sanated in the root without renewed consent, which is against the fact itself. Therefore it can better be said that the Church in such a case does not accept that prior consent as legitimate; and unless the Church accepts it, it remains subject to the invalidating power of the Church.

C. Propositum, de eo qui duxit, etc.; E.M. 959.

But must consent also be renewed by the party ignorant of the impediment when this touches both? There are two opinions. The first opinion affirms. The reason is that the impediment takes away the efficacy of consent from the beginning; therefore it remains ineffective, and accordingly can produce no effect, since it perseveres in the same way in which it was given; but a simple dispensation does not heal the vice which preceded, but only renders the parties capable of consenting in the future. The second opinion denies. The reason is that the prior consent, although it lacked its effect because of an impediment placed by positive law, nevertheless by natural law was valid, since it was given by a person capable by natural law toward a person capable by natural law of contracting. This is confirmed from dispensation in radice itself, which is sometimes given. For in it the Church certainly does not supply, nor can she supply, a defect of consent. Therefore, when the impediment has been removed, the prior consent suffices, which virtually perseveres in its effect, through conjugal copulation, cohabitation, or other external signs. Therefore, when the internal consent of the spouse conscious of the impediment is added, expressed at least through similar external signs, the consent of each is united, and the marriage is convalidated. C. Si infantes un., de Despons. impub., in VI; Lugo, Responsa Moralia, book 6, disp. 2, n. 2.

But practically, consent must altogether be renewed not from the nature of the thing, but because of the clause contained in a simple dispensation: "the other party having been informed concerning the nullity of the prior consent." This clause contains not an admonition, but more probably a condition. L. 1115, 1116, 1117, 895, 1145; A.S.S., vol. 26, p. 421 ff. Consent, moreover, must be renewed publicly before the pastor and witnesses if the impediment is public; but privately if it is occult. The reason is that otherwise the marriage could not be sufficiently proved before the Church; and in the first case scandal must be removed, but in the other scandal and the defamation of the parties must be impeded. Indeed, if the impediment, although occult, can be proved in the external forum and must be dispensed, the marriage must be secretly revalidated before the pastor and witnesses, lest the spouses afterwards be able to separate if the impediment becomes known. Therefore, when the impediment is so occult that it can in no way be proved in the external forum, it is not then necessary to contract marriage again before the pastor and witnesses.

St. Alphonsus, book 6, n. 1116, speaking of the second opinion just reported, says that it can serve for practice in a case of urgent necessity. "For if from knowledge of the nullity of the marriage there can prudently be feared danger of death, grave infamy, or scandal to follow from separation; and on the other hand the spouse could not avoid rendering the debt, then he can well use the second opinion as probable; because in that case, by reason of necessity, even with danger of frustration of the sacrament, it is lawful to follow an opinion only probable, as they commonly teach." Cf. here n. 1046, 9. Benedict XIV, Epistle Accusiamo to Cardinal de Sinzendorf, Bishop of Breslau, December 29, 1742, Bullarium, Naples ed., 1885; Instruction 87, n. 62 ff.; Sacred Congregation of the Council, June 8, 1610; Sacred Penitentiary in Ferraris, v. Matrimonium, a. 8, n. 9; Pyrrhus Corradus, book 7, chap. 7, nn. 8, 9, 12, 13; book 8, chap. 3, n. 44; L. 1899.

If there is danger that the other, upon knowing the nullity of the marriage, will not wish consent to be renewed; or, when each spouse is ignorant of the impediment, the same danger is present and there would be other grave inconveniences of defamation, then the Apostolic See must be approached, so that it dispense from the aforesaid condition of renewal of consent and grant the dispensation which is called in radice. Rising up to the origin, or root, of the marriage, this both renders the person capable of contracting and heals the very vice of the consent given at the beginning. For the root of marriage is consent, and the root which is sanated is consent into marriage naturally valid; and therefore the marriage begins from now to be valid. Holy Office, March 8, 1900; Monit. Eccles., vol. 12, p. 3. The marriage itself moreover is sanated as regards effects, and as regards the legitimation of offspring, from then, i.e., as if it had been valid from the beginning. Namely, in such a case that condition of renewing consent is relaxed; when this has been removed, and when the incapacity of the person has also been removed by dispensation, that consent, valid by natural law, exercises its moral force, and the marriage is perfected. But, as is clear, it is necessary that consent into marriage truly was present and perseveres, and that marriage truly was contracted, and in good faith on the part of both or at least on the part of one, and that it had and still retains the appearance of marriage. Therefore this dispensation is applied while one party, or even both parties, are ignorant of it.

Dispensation in radice is to be executed in the same way as a simple dispensation, by adding in the formula the words, "in the root." Thus, for example: "I, by apostolic authority granted to me, sanate and consolidate in its root the marriage contracted by you with N., and I declare legitimate the offspring received and to be received, in the name of the Father, and of the Son, and of the Holy Spirit." But no formula is contained in the Roman Ritual. Sanchez, book 2, disp. 35, 36, 37; book 8, disp. 7; Benedict XIV, Const. Etsi, Notifications 68, 80, 87; de Syn., book 13, chap. 21; L. 1109, 1115 ff.; E.M.

Dispensation in radice is granted by the Sacred Penitentiary, by the Sacred Congregation of the Sacraments, and by the Holy Office for various cases, and regularly must be sought through the Ordinary. Monit. Eccles., vol. 19, p. 4 ff.

According to the Holy Office, November 22, 1889, for sanation in radice it is required that the Catholic party acknowledge the nullity of the marriage. Collectanea S.C. de Propaganda Fide, n. 1721.

According to the Holy Office, March 11, 1868, marriages contracted with impediments of ecclesiastical law are revalidated in radice without renewed consent. Collectanea S.C. de Propaganda Fide, 2nd ed., 1897, n. 1326.

According to the Holy Office, August 22, 1906, a marriage null because of disparity of cult is sanated in radice after baptism has been received by the wife, without any prior admonition of the Catholic husband. Collectanea, cited, n. 2239.

Legitimation of offspring made by the Supreme Pontiff is extended by a certain consequence also to temporal effects. C. Per venerabilem 13, Qui filii sint legitimi. This is clear in two ways: as regards canonical and civil effects, and as regards the removal of the very stain and infamy of illegitimate birth.

The faculty was twice granted to me by the Supreme Pontiff Pius X of sanating in radice the marriage of two married women, without their husbands being forewarned, and with a document of this sanation left with the women themselves, if perhaps the necessity should occur of demonstrating that sanation had been obtained.

Tanquerey

Adolphe Tanquerey, S.S. — 5 passages (filed under the subtopics)

Vol. I, Matrimony, and Holy Orders, On Marriage (Volume I), Chapter IV: On Dispensations and the Revalidation of Marriage

n. 1093.

When a marriage was null from defect of natural consent, which was given fictitiously, or from error, force, or fear, it cannot be renewed except by a new consent duly furnished, i.e., with the error or fear removed, and with knowledge of the nullity of the prior marriage. Nor in this case is any dispensation required. - But the manner of proceeding for the renewal of consent is diverse according to the diverse cases which occur:

(A) If the nullity of the marriage on account of defect of consent is publicly known, the consent must also be renewed publicly, and indeed in the face of the Church, even if previously the marriage had been celebrated in the prescribed form¹.

¹ Codex, c. 1136, § 3.

(B) But when the nullity is occult: (a) if consent was deficient on the part of both, both must renew consent by an external sign, although private and secret², and indeed after they have known that the prior consent is null.

² Codex, c. 1136, § 3.

(b) If the consent was null on the part of one only, that party must freely furnish a new consent, the consent of the other party persevering; but this is judged to persevere provided it has not been revoked by a positive act³. - If the defect of consent was merely internal, it is enough that the party who had not consented consent inwardly. If it was also external, it is necessary also to manifest the consent outwardly⁴.

³ Codex, c. 1136.

⁴ Codex, c. 1136.

n. 1094.

Some besides used to say that the other party, who truly consented, must be warned concerning the nullity of the marriage, so that he might renew consent with knowledge of the invalidity. Now it is certain from the Code⁵ that this is not required; from another side, a moral union between the consent of one and the consent of the other suffices, as in every contract; but such a union exists in the case; for the consent validly furnished by one virtually perseveres, and is manifested through cohabitation and the mutual signs of conjugal love, while the other freely renews his consent. - Nor does the fear stand in the way lest the party who freely consented from the beginning, if warned concerning the nullity of the marriage, perhaps would retract consent; for a hypothetical retraction cannot destroy the force of the consent furnished before.

⁵ Codex, c. 1136.

II. On the Revalidation of a Marriage on Account of Defect of Form.

n. 1095.

A marriage, null from this head, can be revalidated, without dispensation, only by renewing consent before the pastor and witnesses. (a) This indeed regularly must be done publicly when the nullity of the marriage is publicly known, so that scandal may thus be repaired; nevertheless, if on account of special circumstances the parties are unwilling to renew consent publicly, they can be permitted to repeat it secretly, with the Bishop consenting, and scandal removed in another way.

(b) When the nullity is occult, it suffices that the consent be renewed secretly, before the pastor and witnesses, for preventing the infamy of the spouses.

(c) But if either one refuses to contract in church, consent can be renewed in any decent place. If one consents to appear before the pastor, and the other only through a proxy, or if both wish to contract privately before the confessor, this can be done with the Bishop's permission. - If one is unwilling to renew consent in any way, thinking this altogether useless, sanation in the root is to be sought. But if each absolutely refuses to appear before the pastor or confessor, nothing remains except to pray for them that they may turn themselves to better things: for the Church is not accustomed to grant dispensation to those who obstinately despise her laws.

III. On the Revalidation of a Marriage Invalid on Account of Another Impediment.

n. 1096.

A marriage contracted invalidly on account of a diriment impediment can sometimes be revalidated without dispensation, namely when the impediment ceases of itself; e.g., the bond ceases when the spouse has died, disparity of cult by the baptism of the infidel party; but if the impediment does not vanish of itself, it is necessary that a dispensation first be obtained¹. These things being posited, it remains to inquire how consent must be renewed.

¹ Codex, c. 1133.

(A) If the impediment is publicly known, consent must be repeated publicly in the form prescribed by law², even if this had been observed in the prior marriage: for this is required both for repairing scandal and so that the validity of the marriage may be established. - If, however, the putative spouses cannot be brought to contract publicly, they can be permitted to renew consent occultly, before the pastor and witnesses; yet afterward this must be published at an opportune time, so that scandal may be removed.

² Codex, c. 1135, § 1.

n. 1097.

(B) But if the impediment is occult, it suffices that the consent be renewed occultly, and indeed without the prescribed form, if this had already been observed the first time.

(a) This indeed will be easy if the impediment is known to each party: for both, conscious of the nullity of the prior marriage, express a new consent, which is altogether independent of the prior one¹.

¹ Codex, c. 1135, § 2.

(b) But if the impediment is known to only one party, and cannot be manifested to the other without grave inconvenience, it is not required that the party ignorant of the impediment renew consent; the renewal of consent made by the party conscious of the impediment suffices. Thus the Code².

² Codex, c. 1135, § 3; cf. Codex, c. 1133, § 1.

"But this renewal of consent is required by ecclesiastical law for validity, even if in the beginning each party furnished consent and did not afterward revoke it."³ Which "renewal of consent must be a new act of the will toward a marriage which is established to have been null from the beginning."⁴

³ Codex, c. 1133, § 2.

⁴ Codex, c. 1134.

Vermeersch, Theologia Moralis

Arthur Vermeersch, S.J. — 1 passage

Vol. III, Bk. II, Tr. VIII, Title VIII: The Convalidation of Matrimony

n. 823.

— A twofold mode of convalidation of matrimony is distinguished: one ordinary, simple, when, the impediment having been removed, of itself or by dispensation, or the defect having been supplied, the matrimony, the things to be observed having been observed, from that moment becomes and is considered valid; and sanation in the root, when, without new consent, from the former consent having been healed, the matrimony is convalidated. The peculiar juridic effects belong to this later mode. Hence the division of the chapter into two articles.

Prümmer, Manuale Theologiae Moralis

Dominic M. Prümmer, O.P. — 3 passages

Vol. III, Pt. II, Tr. X, Ch. IX, Article V. On the Convalidation of a Matrimony Invalidly Contracted

n. 875.

875. Preliminary note. When some contracted matrimony is discovered to be certainly null because of an existing diriment impediment, both the parish priest and the confessor must proceed with great circumspection. There are four ways of proceeding:

1. Separation of the spouses. This separation must be required if an indispensable impediment, for example, the bond, stands opposed to the matrimony, and there is no well-founded hope that the spouses can live together as brother and sister and that public scandal can be avoided. Apart from this case it is rarely expedient to procure the separation of spouses living in an invalid matrimony. For many inconveniences are wont to arise from such a separation, both for the spouses themselves and for offspring perhaps born.

Before the pseudo-spouses are separated, a matrimonial process is ordinarily required, concerning which see our Manual of Canon Law, q. 537 ff. A juridical process is not necessary if the matrimony is invalid a) because of the seven impediments enumerated in can. 1990; b) because of the former impediment of clandestinity.²⁹⁷ But it belongs neither to parish priests nor, a fortiori, to confessors, but to the local Ordinary, to pronounce the nullity of such marriages.

2. To leave the putative spouses in good faith. This method is not licit unless a) both spouses are truly in good faith and there exists a well-founded hope that this good faith will remain perpetually; b) there is an urgent cause for permitting material sins. Such an urgent cause is, for example, a grave danger that the putative spouses, after learning of the nullity of the matrimony, may nevertheless continue to live together maritally and thus remain in perpetual formal concubinage, with harm to themselves, harm to the offspring, and the greatest scandal of the people.

3. Fraternal cohabitation. Fraternal cohabitation can be permitted to putative spouses if the nullity of the matrimony is occult, so that no scandal arises from their living together, and then if their age or virtue is such that there is no proximate danger of incontinence. This absence of the danger of incontinence cannot be known with certainty except through long experience.

4. Convalidation of the invalid matrimony. An invalid matrimony can be convalidated in three ways: 1. by a simple renewal of consent without a dispensation; 2. by a simple dispensation from competent authority; 3. by a radical sanation. Each must be treated individually.

²⁹⁷ Pontifical Commission, October 16, 1919 (Acta Apost. Sed. XI, 479).

Vol. III, Pt. II, Tr. X, Ch. IX, Art. V, § 1. On the Convalidation of a Matrimony by Renewal of Consent

n. 876.

876. By renewal of consent an invalid matrimony can be convalidated in three cases: 1. when the matrimony was invalid because of a defect of consent, for example, consent which was given fictitiously, under fear or force, or with substantial error; 2. when an impediment stood in the way which ceased of itself,²⁹⁸ for example, lack of puberty or the bond; 3. when an impediment stood in the way which can be freely removed by the act of either spouse, for example, disparity of worship or a defect of legitimate form. In all these cases an invalid matrimony can be convalidated by an express renewal of matrimonial consent, without any ecclesiastical dispensation being necessary. As regards the form of this renewal of consent, the following things must be noted:

a) If the nullity of the matrimony is notorious, matrimonial consent must be renewed publicly²⁹⁹ according to the norm established in law. The reason is obvious; otherwise it is scarcely possible for scandal to be sufficiently removed. Therefore, the pseudo-spouses must publicly manifest matrimonial consent before the parish priest and two witnesses. But if, because of particular circumstances, the Ordinary judges it expedient that the matrimony instead be celebrated secretly before their own parish priest and two witnesses, it can be celebrated secretly, provided, however, that public scandal can be removed in another manner and is removed as soon as possible.³⁰⁰

b) If the nullity of the matrimony is indeed known to each spouse but otherwise has remained occult, matrimonial consent must then be renewed before the parish priest and two witnesses if at the first celebration of the matrimony the form prescribed by law was neglected, or, briefly, if the former impediment of clandestinity stands in the way. In this case, if the nullity of the matrimony is discovered by a confessor who is not the parish priest, and the pseudo-spouses refuse to approach the parish priest, the confessor can seek delegation from the bishop so that the matrimony can be celebrated in the manner of a marriage of conscience. What things are required for a marriage of conscience may be seen above, n. 639. But if at the first celebration of the matrimony the form prescribed by canon law was observed, a private and secret renewal of consent suffices.³⁰¹

c) If the occult nullity of a matrimony duly celebrated is known to either spouse but not to both, the older theologians³⁰² devised diverse methods by which the spouse ignorant of the impediment could be induced implicitly to renew matrimonial consent. All these things are now without practical utility, since the Code of Canon Law, can. 1135, § 3, establishes: "If the impediment is occult and unknown to one party, it is enough that only the party conscious of the impediment renew consent privately and secretly, provided that the other party perseveres in the consent given." This renewal of consent, however, must be a new act of the will toward the matrimony which is established to have been null from the beginning.³⁰³

d) If the matrimony was null because of a defect of form, that is, because of the sole impediment of clandestinity, which often has place in mixed marriages entered before the civil magistrate alone, it must be contracted anew in legitimate form³⁰⁴ according to the particular statutes of the places. For bishops are wont to establish special norms not only for invalid marriages of this kind, but also for marriages valid of themselves which nevertheless were entered without the intervention of the Church.

²⁹⁸ This case can occur more frequently today in marriages invalidly contracted before Pentecost 1918 because of impediments which are now abolished by the Code, for example, because of the impediment of affinity arising from illicit intercourse. But if matrimonial consent cannot be renewed in the due form, a radical sanation must be employed.

²⁹⁹ Code of Canon Law, can. 1135, § 1.

³⁰⁰ Thus Cardinal Caprara in the Instruction on the revalidation of invalid marriages in France.

³⁰¹ Code of Canon Law, can. 1135, § 2.

³⁰² Cf. St. Alphonsus, Theol. mor., bk. 6, n. 1117.

³⁰³ Code of Canon Law, can. 1134.

³⁰⁴ Ibid., can. 1137.

Vol. III, Pt. II, Tr. X, Ch. IX, Art. V, § 2. On the Convalidation of a Matrimony by a Simple Dispensation

n. 877.

877. For the sake of clarity, we distinguish a convalidation of this kind a) in danger of death, b) in a case of urgent necessity, c) in ordinary cases.

a) In danger of death, pseudo-spouses can easily, according to the discipline now in force, obtain a dispensation from all diriment impediments of ecclesiastical law, except the impediments of affinity in the direct line and the order of the priesthood. Therefore, any priest can convalidate an invalid matrimony by a simple dispensation if either pseudo-spouse is in danger of death. This faculty of dispensing and the conditions required were already discussed above, nn. 773 and 860.

b) In a case of urgent necessity, all those things must be observed which were said above, n. 860 ff., concerning the faculty of dispensing granted to local Ordinaries and other priests.

c) In ordinary cases, the pseudo-spouses must obtain, for the convalidation of their matrimony, a dispensation from the impediments standing in the way of validity. As regards the form of renewing consent, the same things hold which were said in the preceding paragraph. This simple dispensation is to be recommended when both spouses are prepared explicitly to renew matrimonial consent; but if it is foreseen that either party will not renew consent, not a simple dispensation but rather a radical sanation must be sought.

Marc, Institutiones Morales

Clement Marc, C.SS.R. — 14 passages

Vol. II, Part Third: On the Sacrame…, Tr. VIII, Chapter VI: On The Revalidation Of Invalid Matrimony · Vol. II, Part Third: On the Sacrame…, Tr. VIII, Ch. VI, Article I: On Revalidating Matrimony Invalid On Account Of Defect Of True Consent · Vol. II, Part Third: On the Sacrame…, Tr. VIII, Ch. VI, Article II: On Revalidating Matrimony Invalid On Account Of The Incapacity Of The Parties · Vol. II, Part Third: On the Sacrame…, Tr. VIII, Ch. VI, Art. II, § 1. On The Revalidation Of Matrimony Through New Consent · Vol. II, Part Third: On the Sacrame…, Tr. VIII, Ch. VI, Art. II, § 2. On The Revalidation Of Matrimony Through Sanation In The Root · Vol. II, Part Third: On the Sacrame…, Tr. VIII, Ch. VI, Article III: On Revalidating Matrimony Invalid On Account Of Defect Of The Tridentine Form

Vol. II, Part Third: On the Sacrame…, Tr. VIII, Chapter VI: On The Revalidation Of Invalid Matrimony

n. ¶2081.

I. A matrimony is called INVALID when it is a conjunction of man and woman which indeed bears before itself the form of matrimony, but which, with consent lacking, or with some diriment impediment obstructing, does not have the substance of true matrimony. - In the external forum the ecclesiastical judge pronounces the nullity of matrimony, a process having been completed according to the paths of law.⁴³ In the internal forum, to declare a discovered nullity, unless prudence persuades otherwise, is the office of the confessor. But how cautiously one must proceed in a matter of this kind is declared by the most grave consequences flowing from a pronounced sentence; and hence it is why, in doubt, one must always stand for matrimony, and why in every difficult case counsel must be sought from the Ordinary, or at least from a learned and prudent man.

II. But when the invalidity of matrimony has been discovered, the CONFESSOR ought, according to the diversity of circumstances, either to permit the putative matrimony, or to urge separation, or to procure revalidation.⁴⁴

He ought to PERMIT the putative matrimony, if, the parties being in good faith, only a harmful remedy can be brought, i.e. a remedy from which greater evils, and first of all formal sins, would arise. Therefore in the case in which an occult but indispensable impediment obstructs the validity of matrimony, and in which the putative spouses cannot be separated without scandal and cannot cohabit without danger of incontinence, they are altogether to be left in good faith (cf. n. 1810, Rule 2).
He ought to URGE SEPARATION, if, the nullity of matrimony being manifest to each or to either party, revalidation cannot be had, or is rejected. - Sometimes juridical separation is required, which is made through the sentence of a judge declaring the nullity of matrimony. Sometimes separation from bed and habitation is to be made, under the species of divorce, namely if the nullity of matrimony cannot be proved, nor can revalidation be obtained, and cohabitation is judged not to be free from danger of incontinence. Sometimes separation from bed suffices, so that the putative spouses cohabit as brother and sister: and this remedy indeed is best of all, provided, which is rare, danger of incontinence threatens from neither side.
He ought to PROCURE REVALIDATION, whenever it can be obtained, and the parties do not contradict. But since revalidation, on account of dispensation to be obtained, demands some delay for itself, what is to be observed meanwhile must be indicated in a few words.

If the nullity of matrimony is public and notorious, separation as to bed and habitation is to be urged, until matrimony, dispensation having been obtained, can be revalidated publicly in Tridentine form. This is required from the necessity of avoiding scandal.⁴⁵
If the nullity is known only to the parties, separation from bed suffices, provided proximate danger of sinning is absent; otherwise, momentary separation from habitation, under an honorable pretext, for example of a journey, is prescribed.
If the nullity is known to only one party, this one, where no inconvenience underlies, should warn the coparty, and let them act as in the preceding case; or under some pretext let this party refuse the debt even with whatever inconvenience; since it is never licit to use matrimony while its invalidity is established. And meanwhile, every delay having been cast away, either simple dispensation is to be sought, if the party unaware can be warned; or dispensation in the root, if warning is foreseen as going to be impossible (cf. n. 2084).
If the nullity is known to neither party, and greater inconveniences are foreseen from warning, as for the most part they must be foreseen, the parties are to be left in good faith, until, through the confessor having obtained the necessary faculties, the nullity can both be declared and immediately healed. And in this way indeed one must always act when a spouse confesses a sin committed before the nuptials, from which the nullity of matrimony becomes known to the confessor alone (cf. n. 2041 and 2051).⁴⁶

The confessor should also take care that the spouses, at the time at which the matrimony is revalidated, be in the state of grace, since at that point of time they receive the Sacrament. - But, right disposition lacking, revalidation is not for that reason to be postponed, since a greater evil would generally come from postponement.

III. For the revalidation of matrimony two things are regularly REQUIRED: dispensation from the impediment, and new consent. - 1) As regards dispensation, the things which we warned above are to be attentively attended to in the petition (cap. IV, especially n. 2049, 10, and 2051, 6). - 2) New consent is to be furnished in Tridentine form, if this was omitted, or if the nullity is publicly established. Nor nevertheless are publications necessarily to be premised; it suffices if consent is renewed occultly before the parish priest and two faithful witnesses, provided scandal is forestalled through opportune divulgation. But if the nullity is occult, and the matrimony has already been celebrated in the face of the Church, it suffices that consent be repeated secretly, the Tridentine form being omitted. The reason is that the Council wills the presence of the parish priest and witnesses for proving the validity of matrimony according to external appearance; but since the matrimony first contracted is now externally reputed valid, the reason ceases why the aforesaid presence would again be required.⁴⁷ - And thus indeed the S. Penitentiary established from the oracle of St. Pius V, and it itself constantly held this manner of acting.

Moreover, the MANNER OF ACTING in the revalidation of matrimony depends on the nature of the impediment which obstructs validity, and which comes either 1. from defect of true consent, or 2. from defect of habilitation of the parties, or 3. from defect of the Tridentine form. - Therefore, concerning the diverse manner of revalidating, according to the diversity of impediment, some things are to be set down.

Vol. II, Part Third: On the Sacrame…, Tr. VIII, Ch. VI, Article I: On Revalidating Matrimony Invalid On Account Of Defect Of True Consent

n. ¶2082.

Matrimony is invalid ON ACCOUNT OF DEFECT OF CONSENT, if one party or each party, whether fictitiously, or from error, or from force and fear, consented. - Such a matrimony, error or fear having been removed, is revalidated by consent alone duly furnished. - Now:

If true consent was lacking from EACH party, it must be expressly renewed by each party, as is clear of itself.
If it was lacking from only ONE party, it is certain that it must be renewed from this side. But whether it must also be renewed by the other party, namely so that this one must be warned concerning the nullity of the matrimony, is indeed controverted; but the more common and truer opinion denies with St. Thomas.¹ - Indeed, if no inconvenience were to be feared, which very rarely is absent, it would be better, on account of reverence for the Sacrament, that consent be renewed on both sides; but this mutual renewal is not necessary. Therefore it suffices if he who previously did not consent furnishes his consent, either by words or by signs, for example through conjugal intercourse and through cohabitation. "The reason is that it is certain that in the contract of matrimony physical simultaneity of the consents of the betrothed is not required, but moral simultaneity suffices, namely if the consent of one morally perseveres while the consent of the other is placed. But in our case..., since the true consent of the other has already preceded and virtually perseveres, through cohabitation or another sign, it is enough that the consent of the one who suffered fear or consented fictitiously accede."² Positive law suffragates.³

"Nor does the fear obstruct, lest the party who furnished free consent, if again asked about new consent, perhaps should deny it; for this interpretative dissent is not true dissent, but meanwhile the consent formerly imparted perseveres."⁴

IT IS ASKED. "Whether one who FICTITIOUSLY contracted matrimony is bound FROM JUSTICE to revalidate it by true consent?"

Resp. "The Salmanticenses and others affirm, because the other has already handed over his body through true consent; whence, that equality may be preserved, the one fictitiously consenting is bound also through true consent to hand over his body. But Sanchez, and others, more probably deny, because since the contract of matrimony cannot limp, when one consents fictitiously, there is no handing over on the part of the other, and therefore no inequality remains: for he who placed true consent remains equally free as if he had placed no consent. - Nevertheless all agree that the one consenting fictitiously is bound to revalidate the matrimony by true consent, if he cannot otherwise repair the damages inflicted on the other from that deception."⁵

Vol. II, Part Third: On the Sacrame…, Tr. VIII, Ch. VI, Article II: On Revalidating Matrimony Invalid On Account Of The Incapacity Of The Parties

Matrimony invalid on account of an impediment of divine law, for example on account of bond, this having been removed, is convalidated through the new consent of each party, according to the things said in n. 2014, 3. - But matrimony invalid on account of an impediment of ecclesiastical law is convalidated, dispensation first having been obtained, either through new consent, or through sanation of the prior consent, which manner is called SANATION IN THE ROOT.

n. ¶2083.

Rule 1. If the impediment obstructing validity is known to EACH party, the matrimony must be revalidated through consent to be expressed in act by each party. For in this case, there is had not so much a revalidation as a simple celebration, although secret.

Rule 2. If the impediment is known to only ONE party, and cannot be REVEALED to the other without danger of grave damage, the party conscious of the impediment is to be admonished concerning consent necessarily but secretly to be renewed with the putative spouse, the other party having been made more certain concerning the nullity of the prior consent, but so cautiously that this one's delict is nowhere detected. This Manner furnishes every security concerning the value of the Sacrament, since both parties, now made capable through dispensation, knowingly emit a new consent, and one independent from the prior consent: wherefore this is especially to be desired.

But renewal of consent can be sought by the conscious party speaking thus to the coparty: "when I married, I did not have true consent; now I wish to furnish it: do you also wish to furnish it?" or: "the confessor told me that my consent was not duly furnished; come, let us now renew it mutually."⁶ No one does not see that the aforesaid making-more-certain generally has much difficulty and is full of dangers. And hence it is why the S. Penitentiary, a great difficulty standing, no longer urges the matter, as is gathered from the following rule.

Rule 3. If the impediment is known to only ONE party, and the other party cannot be MADE MORE CERTAIN concerning the nullity of the matrimony without grave danger, this making-more-certain can be omitted, and the matrimony revalidated, "consent having been renewed, according to the rules handed down by approved authors." - Thus from the style which today the S. Penitentiary commonly observes in conceding faculties.⁷

A manner of this kind is if the conscious party says: "I am troubled by scruples concerning the value of our matrimony, and therefore let us renew consent"; or: "for my consolation I wish to contract anew; come, let us contract"; or: "out of my love toward you I take you as spouse, do you not also in turn?"

Indeed, if none of these manners seemed to have to be employed, the consent of the conscious party expressed through conjugal intercourse would suffice, with the consent of the other virtually enduring. For that consent furnished with an impediment was naturally valid, and lacked its proper effect only on account of the obstacle; therefore, the obstacle having been removed and the consent of the other acceding, the consent becomes mutual, and the matrimony is convalidated.⁸

Nor does it obstruct that here use is made of a probable opinion concerning the value of the Sacrament; for: 1) in a case of urgent necessity, this is licit according to the things said in n. 82 and n. 1407; 2) there is question here of matter in which the Church can supply, and, a just cause standing, certainly supplies: which will be clearer from the things soon to be said.

Vol. II, Part Third: On the Sacrame…, Tr. VIII, Ch. VI, Art. II, § 2. On The Revalidation Of Matrimony Through Sanation In The Root

n. ¶2084.

SANATION IN THE ROOT is the abrogation of the ecclesiastical law which induced the impediment, in a particular case, with retroactive force, so that dispensation from the impediment now conceded is to be had as if it had been conceded before the matrimony was contracted, and the matrimony is revalidated without new consent.

And indeed, just as because of dispensation conceded before the nuptials were entered mutual consent duly furnished would have effected valid matrimony: so through dispensation now conceded with retroactive force it is effected that the same prior consent virtually persevering exercises its force and effects matrimony, which for this reason obtains the same effects just as if it had been valid from the beginning.⁹ - For the dispensation, by fiction of law, is drawn back to the root of the matrimony, and replaces things in that state in which they would have been if the impediment had never existed; and hence it is why it is called sanation in the root.

From the things said it follows that sanation in the root has a twofold EFFECT: one from now, i.e. the validity of the matrimony by force of the first consent; the other from then, namely the annulling of all the effects that followed from the nullity, first of all as regards children, who obtain the fullest legitimacy, so that they are altogether to be held as born from legitimate matrimony. This effect indeed can be obtained even when the parents are deceased.

Hence the difference between sanation in the root and ordinary revalidation is clear, since the latter requires new consent, and extends its effects only to future time, but not to the past.

n. ¶2085.

I. That the Church possesses the POWER of revalidating matrimony through sanation in the root is of certain law, and is evinced both from constant practice and from the nature of the matter. For just as the civil legislator can so remove his law that he annuls its effects even as to past time: so similarly the Supreme Pontiff can abrogate his own law as to all its effects.¹⁰

n. ¶2086.

II. The CONDITIONS required for sanation in the root are FOUR, namely:¹¹

That the impediment be of ecclesiastical law.
That true matrimonial consent was given in the beginning; for the root which did not exist cannot be healed. Wherefore it is required that, at least at the time of celebration, the conjunction had the appearance of matrimony and was not manifestly fornicary. - Matrimonial consent indeed does not regularly consist with knowledge of an impediment, since no one can seriously will what he knows cannot be done; nevertheless it can consist, if one does not sufficiently attend to its invalidating force, or if this force is unknown, or is not believed, or is not held as sufficiently seen through. If one party is in good faith as to the validity of the matrimony, the consent of this one can be healed, the consent of the other party having been renewed. Hence it is concluded that civil matrimony can be healed in the root, provided true matrimonial consent was furnished.
That the consent of each party persevered. This condition is customarily expressed, for the most part, in the Pontifical Rescript; but if it has not been expressed, it ought to be supposed by full right. For if the consent, the matrimony not yet having been convalidated, has been revoked, it can no longer be healed, since it has already been destroyed; otherwise one would have to say that the Sacrament of matrimony can be received by one formally unwilling. - But interpretative dissent does not impede sanation in the root, because it does not fight with true consent (cf. n. 2082). Besides, one must not inquire anxiously concerning the perseverance of consent; it suffices if revocation is not established.
That a grave and urgent cause be present: which is had if the matrimony cannot be revalidated otherwise, or in no way, or at least not without danger of grave damage. Yet the dispensation would be valid if the Pope knowingly conceded it without cause; otherwise, if the Ordinary conceded it (cf. n. 238).

n. ¶2087.

For practice, the following still come to be NOTED: - 1. Sanation in the root is commonly conceded only for the internal forum; nevertheless, necessity demanding it, it can also be obtained for the external forum; in which case, inscription of the convalidated matrimony is to be made either in the parochial book, if prudence permits this, or in a secret book to be preserved in the episcopal Curia, according to the things said in n. 2080 (Note 3). - 2. In whatever way revalidation is made, scandal, if perhaps it is present, is to be removed through knowledge of the valid matrimony prudently made known. 3. Sanation can be made with each party unaware, and thus is to be made whenever danger of grave damage is feared from warning. - 4. If one party can prudently be warned, the dispensation in the root ought to be fulminated according to the norm described above for ordinary dispensation (n. 2054), the things to be changed having been changed, and those things which are prescribed in the Rescript being diligently observed.

This or a similar Formula can be employed: I, by the Apostolic authority conceded to me, heal and strengthen in its root the matrimony contracted by you with N., and I declare the offspring received or to be received legitimate. In the name of the Father, etc.

Vol. II, Part Third: On the Sacrame…, Tr. VIII, Ch. VI, Article III: On Revalidating Matrimony Invalid On Account Of Defect Of The Tridentine Form

n. ¶2088.

Matrimony invalid ON ACCOUNT OF DEFECT OF FORM is sometimes convalidated by this very fact, that the betrothed legitimately withdrawn from the Tridentine law, namely through acquisition of domicile in a place where the law is not in force, formally renew consent, at least by signs, for example by living conjugally. Outside this case, the Tridentine form must be observed, or dispensation obtained. - But before all things one must weigh with what mind the spouses are, namely whether each party, or only one, or neither, is rightly disposed.¹²

If EACH of the contracting parties is rightly disposed, the Tridentine form is to be observed, either occultly, if the nullity of the matrimony is occult; or publicly, if it is public. - But if the Ordinary, on account of peculiar circumstances, has judged that it is expedient that matrimony be celebrated secretly before the parish priest and two witnesses, it will be able to be celebrated secretly: provided public scandal can be removed by another reason, and is removed as soon as possible (cf. n. 2080, Note).
If ONE of the contracting parties refuses to convalidate the matrimony in the face of the Church, it must be striven that this one, through a special procurator or letter, express consent in the present before the parish priest and witnesses, and thus the validity of the matrimony be provided for. If not even this can be obtained, but true matrimonial consent was in no way revoked, one must come to sanation in the root, with the conditions observed, as above (n. 2086).
IF NEITHER contracting party consents to revalidate the matrimony in legitimate form, there is no place for dispensation, since contumacious persons by no means deserve to feel the indulgence of the Church (cf. n. 2086, 2).

Note. 1. Nuptials revalidated, if the revalidation was public, are to be blessed again; because in truth they were never blessed; otherwise, if the revalidation was secret.¹³ 2. Public revalidation is INSCRIBED in the usual parochial book. - But if formerly the matrimony was already celebrated in Tridentine form, then either a new inscription is made with reference to the prior one, or the whole matter is duly annotated to this one. - Secret revalidation, if it is made in Tridentine form, is inscribed in the book of secret matrimonies; otherwise, no inscription is made.¹⁴

Scholium.

Vol. II, Treatise on Matrimony, Chapter VII. On the Revalidation of Matrimony · Vol. II, Treatise on Matrimony, Ch. VII, Article I. On the Revalidation of Matrimony Invalid Because of Defect of Consent · Vol. II, Treatise on Matrimony, Ch. VII, Article II. On the Revalidation of Matrimony Invalid Because of Defect of the Prescribed Form · Vol. II, Treatise on Matrimony, Ch. VII, Article III. On the Revalidation of Matrimony Invalid Because of Incapacity of the Parties · Vol. II, Treatise on Matrimony, Ch. VII, Art. III, § I. On the Revalidation of Matrimony in the Ordinary Mode · Vol. II, Treatise on Matrimony, Ch. VII, Art. III, § II. On the Revalidation of Matrimony with Dispensation in the Root · Vol. II, Treatise on Matrimony, Appendix: I. On the Mode of Proceeding if Revalidation Can in No Way Have Place, or Before It Can Be Done

On Civil Matrimony.

n. ¶2089.

Just as it is the office of the Church to establish those things which pertain to matrimony, as it is considered in itself and is one of the seven Sacraments, so there is a right in civil society to determine the CIVIL EFFECTS of matrimony. - To this pertain cases of dowry and of inheritance, likewise cases of succession, admission to or exclusion from public or private offices and duties, illegitimacy of offspring in the civil forum, and other things of this kind, which are found described in the codes of each nation or province.

The Church has never not recognized this authority of civil society; indeed she has even openly fought for it; and Pope Leo XIII most recently furnished this in the Encyclical Arcanum, with these words: "Likewise she, the Church, does not herself ignore, nor deny, that the Sacrament of matrimony, since it is directed also to the conservation and increase of human society, has cognation and relation with human things themselves, which indeed follow upon matrimony, but turn in the civil genus: concerning which things those who preside over the republic rightly decree and take cognizance."

But civil authority has not used equal equity toward the Church. For it not only did not recognize ecclesiastical authority, but even attacked it with sacrilegious daring, by issuing laws concerning things looking to the nature or validity of matrimony, concerning the firmness of the bond, concerning the form necessarily to be observed in contracting. Thence that pact which is called CIVIL MATRIMONY, which alone is held by the civil legislator as true matrimony, and which consists in the mutual consent of man and woman expressed according to the prescriptions of civil law.

Moreover these prescriptions of law look both to impediments, whether prohibiting or diriment, and to the form necessarily to be observed.¹ - It helps here to indicate in a few words those which are now more universally in force.

The PROHIBITING impediments received almost commonly are these: - 1) defect of denunciations in the civil forum; - 2) military condition, unless the one who presides over military matters grants permission; - 3) state of widowhood: namely a widow cannot pass to new nuptials except after ten months from the death of the prior spouse, or unless meanwhile she has given birth; for birth immediately removes the impediment.

Very many DIRIMENT impediments have been taken from ecclesiastical legislation, yet under a limitation to be recognized from civilists. They are the following: - 1) Force and fear; 2) error and madness, even if the madman has lucid intervals; - 3) defect of puberty, namely if the man has not yet completed eighteen years, the woman fifteen; - 4) bond, unless somewhere civil matrimony has been dissolved through legal divorce; - 5) consanguinity, affinity, and legal cognation: namely nuptials are prohibited between all ascendants and descendants, whether legitimate or natural; between brothers and sisters, whether legitimate or natural; between affines of the same degree; between paternal uncle and niece, and between maternal aunt and nephew; likewise between adopter and adopted and the descendants of the latter; between brothers and sisters from adoption; between adopter and the spouse of the adopted. [In the ITALIAN Code there is numbered besides: homicide, even merely attempted, which invalidates matrimony between the homicide and the surviving spouse of the one killed; likewise manifest, perpetual, and antecedent impotence. To the impediments mentioned there has been added almost everywhere another impediment, namely defect of consent of the parents, or of those who hold the place of parents, if the son has not yet completed the twenty-fifth year, the daughter the twenty-first.] - THE OTHER canonical impediments ARE NOT RECOGNIZED by the civil legislator, and obtain no force in the civil forum.

As regards the FORM of civil matrimony, the law prescribes that it be contracted publicly before a civil official and witnesses.

n. ¶2090.

From these impious laws, which plainly stand against canonical discipline, most mournful consequences flow, namely: Honors and advantages of true matrimony are attributed to this coupling of man and woman made against the laws of the Church, which therefore is nothing other than foul concubinage. On the contrary, civil effects are denied to true matrimony, i.e. matrimony contracted according to the laws of the Church, unless civil matrimony also accedes to it. Indeed, afterward the very liberty of contracting in the face of the Church is tyrannically restricted. But what must be done in these straits is taught by the S. PENITENTIARY in the Instruction given on 15 January 1866,² whose principal heads we judge opportune to report here.

I. From true doctrine concerning matrimony it is easily deduced that a civil act can in no way be held before God and his Church either as a Sacrament, or truly even as a contract; and therefore one would be a true concubinarian who should presume to persist in matrimony by force only of the civil act, and he is unworthy of absolution until he repents and, subjecting himself to the prescriptions of the Church, is converted to penance.³

II. "But although for the value of matrimony there is by no means need that it be ratified or confirmed by the civil power: nevertheless, for avoiding vexations and penalties, and on account of the good of offspring, which otherwise would by no means be held as legitimate by the lay power, and also for averting the danger of polygamy: it seems opportune and expedient that the same FAITHFUL, after they have legitimately contracted matrimony before the Church, present themselves, about to execute the act decreed by law, yet with this intention, as Benedict XIV teaches in the Brief Redditae sunt Nobis dated 17 Sept. 1746, that by presenting themselves to the Government official they do nothing other than execute the civil ceremony."⁴ There are not lacking authors who affirm that the aforesaid obligation must be fulfilled, in certain Kingdoms, under grave obligation, especially on account of the detriment which otherwise would threaten either the parties or the offspring.⁵ Yet one must say otherwise if the law somewhere has not yet obtained so great force.

III. "For the same causes, but by no means so that they may cooperate with the execution of the unhappy law, PARISH PRIESTS should not so easily and promiscuously admit to the celebration of matrimony before the Church those faithful who, because they are barred by law, afterward would not be admitted to the civil act, and therefore would not be held as legitimate spouses. In this matter, they will have to use much caution and prudence, and to seek the counsel of the Ordinary; and let him not be easy in assenting; but in graver cases let him consult this sacred Tribunal."⁶

IV. "But if it is opportune and expedient that the Faithful presenting themselves for performing the civil act prove themselves legitimate spouses before the law: nevertheless they ought by no means to perform this act before they have celebrated matrimony before the Church. And if some coercion or absolute necessity, which is not easily to be admitted, were the cause of inverting the order of this kind; then every diligence must be used that matrimony be contracted before the Church as soon as possible, and meanwhile the contracting parties remain separated."⁷

N.B. As regards SYNDICS and CIVIL OFFICIALS, see the things to be said in n. 2126 and 2291 sqq.

n. ¶2091.

IT IS ASKED. Whether merely civil matrimony produces no effect in the ecclesiastical forum?

Resp. Civil matrimony, although it lacks the nature of matrimony, nevertheless bears before itself a certain appearance and external form of the same; whence, if true matrimonial consent was present, it can attain validity through sanation in the root (cf. n. 2086). - Besides, it is some attempt at matrimony: and from this head it induces the penalties established against those attempting matrimony, and, adultery acceding, it produces the impediment of crime (cf. n. 2036). Yet from it there does not arise the impediment of public honesty (cf. n. 2034). - And these things indeed have force for places where the Tridentine law concerning the form of matrimony is in force; but in places where the said law is not in force, civil matrimony, true consent having been furnished, is to be held as clandestine matrimony.⁸

Konings, Theologia Moralis

Anthony Konings, C.SS.R. — 16 passages

Vol. II, Treatise on Matrimony, Chapter VII. On the Revalidation of Matrimony

n. ¶1629.

1629. - Matrimony can be invalid: 1° because of defect of consent; 2° because of defect of the prescribed form; 3° because of incapacity of the parties. (46) p. 428.

Vol. II, Treatise on Matrimony, Ch. VII, Article I. On the Revalidation of Matrimony Invalid Because of Defect of Consent

It is certain, 1° that Matrimony invalid because of defect of consent alone - that is, celebrated by error, or through force and fear, or fictitiously - can be revalidated by simple renewal of consent.

It is certain, 2° that renewal of consent of each party is required, if each truly did not consent, and at least of that one who did not consent, if it is one only. But concerning several things there is controversy; hence:

n. ¶1630.

1630. Questions. - Quaer. 1° Must consent be renewed by both, if one only consented fictitiously or through fear?

Resp. Negatively. The reason is that the consent of the other, truly placed, perseveres, so long as it has not been positively retracted. - Thus the Theologians commonly; and St. Alphonsus calls this sentence the truer one.²

Nevertheless, some affirm, the sentence of whom to others does not seem probable. But in practice it is better to choose the safer counsel, and, insofar as it can be done without inconvenience or danger, to take care that consent be elicited from each.

Quaer. 2° Must the consent to be renewed be before the Pastor and witnesses?

Resp. Negatively. It appears from the practice of the Church and the common sentence, namely because of the inconveniences which would follow from that obligation. Except if the nullity has become publicly known. Yet the proclamations are then omitted.

Vol. II, Treatise on Matrimony, Ch. VII, Article II. On the Revalidation of Matrimony Invalid Because of Defect of the Prescribed Form

n. ¶1631.

1631. - I. It is certain that Matrimony invalid by reason of clandestinity must be entered before the Pastor and witnesses, unless there is obtained from the Supreme Pontiff a dispensation from the law of the Council of Trent, which otherwise is rarely conceded. For that law obliges so long as it has not been fulfilled, since it is a condition sine qua non, required in every case for the validity of Matrimony, unless recourse to the Pastor is commonly and morally impossible in some place [n. 1606. f)].

II. If both spouses do not refuse to present themselves before the Pastor, before him the Matrimony must be revalidated either publicly or secretly, according as the nullity of the Matrimony was public or occult. The reason is that in the former case scandal must be removed, but in the latter it must be guarded against, and the reputation of the spouses must be preserved.

"But if the Ordinary," while the invalidity is notorious, "because of peculiar circumstances judges it expedient that it be celebrated secretly before the proper Pastor and two witnesses, it will be able to be celebrated secretly, provided however that public scandal can be removed by another reason, and is removed as soon as possible." Thus Cardinal Caprara in the Instruction on the revalidation of Matrimonies.

But various difficulties occur if one party consents to contracting before the Pastor and the other refuses, or if both are badly disposed. Hence:

n. ¶1632.

1632. Questions. - Quaer. 1° What must be done if one party, or each, consents to renewing consent before the Pastor, but refuses to go to the Church?

Resp. They are to be joined in their own house or in another place chosen by them, provided grave witnesses are present, by whose help the convalidation of this Matrimony can become public, if this is necessary for removing scandal, namely if the invalidity of the prior conjunction is notorious.

Quaer. 2° What must be done if one refuses to contract before the Pastor?

Resp. Thus Cardinal Caprara responds in the cited Instruction: "If the refusal arises from ignorance or some error against the laws or doctrine of the Church concerning impediments invalidating Matrimony, let the one refusing be instructed with due prudence and in charity. And insofar as he still refuses to convalidate his Matrimony in the face of the Church, then effort must be made that he constitute a special procurator, who in his name may contract Matrimony in the customary manner; or at least, consent de praesenti having been expressed through a letter directed to the proper Pastor or to another priest having the license of the Ordinary or Pastor, let the Matrimony be renewed."

Quaer. 3° What if the indisposed party does not wish to contract even through a procurator, etc.?

Resp. Thus the same Cardinal Caprara responds: "If the things thus far prescribed can in no way be obtained, and one party cannot be brought to the celebration of Matrimony to be made according to the things handed down above, ... we judge that recourse can be had to dispensation in the root of Matrimony, or to the sanation of Matrimony in the root, so that at least the salvation of the innocent party's soul, the legitimacy of the offspring, and the tranquility of families may be consulted altogether, and as soon as possible provision may also be made for the salvation of the soul of the one refusing."

Quaer. 4° What if neither party consents to contract Matrimony anew?

Resp. Nothing at all is to be done here and now, because sanation in the root, although absolutely speaking it could be given by the Pope even in that case, will not be given. Therefore it remains that the Pastor frequently commend the most wretched concubinaries to God, and by assiduous cares strive to procure their conversion.

Vol. II, Treatise on Matrimony, Ch. VII, Article III. On the Revalidation of Matrimony Invalid Because of Incapacity of the Parties

For revalidating Matrimony invalid because of an ecclesiastical impediment, before all things the dispensation from the impediment must be obtained. But a dispensation of twofold kind is given, namely: 1° simple dispensation, or in the accustomed mode; 2° dispensation in the root of Matrimony.

Vol. II, Treatise on Matrimony, Ch. VII, Art. III, § I. On the Revalidation of Matrimony in the Ordinary Mode

n. ¶1633.

1633. - First Rule. If each spouse is conscious of the impediment, each is bound to renew consent, after a dispensation has been obtained for revalidating the Matrimony. The reason is that knowledge of the nullity of the Matrimony, because of a known diriment impediment, had necessarily excluded true consent in the preceding contract of Matrimony.

Second Rule. If one party only has known the impediment, that one is certainly bound to renew his or her consent, at least alone and separately. It follows from the things just said.

Third Rule. The party ignorant of the impediment would not necessarily have to renew consent for the validity of Matrimony, if the impediment regarded the other party only. The reason is that the consent of that one was valid from the beginning, and therefore perseveres; therefore the renewal of consent of the incapable party would suffice. Hence, if a faithful person had married an unbaptized woman who is ignorant of the impediment, it would suffice that, infidelity ceasing or a dispensation having been obtained, the faithful person renew consent; because the consent of the infidel was valid, since the Church could not impress personal incapacity upon her.

n. ¶1634.

1634. Questions. - Quaer. 1° Must the party ignorant of the impediment necessarily renew consent for the valid reintegration of Matrimony?

Resp. A twofold probable sentence is given:

The first sentence affirms. The reason is, 1° because the impediment takes away the efficacy of the consent from the beginning; therefore it remains inefficacious, and hence can produce no effect, since it perseveres in the same mode in which it was given; but a simple dispensation does not heal the defect which preceded, but only renders the parties capable of consenting in the future; 2° because in Rescripts of the Sacred Penitentiary this clause is usually added: the other party having been certified concerning the nullity of the prior Matrimony. Therefore. - Sanchez, Sylvius, Navarrus, etc.

The second sentence denies. The reason is that the prior consent, although it lacked its effect because of an impediment placed by positive law, nevertheless by the law of nature was valid, since it was furnished toward a person capable by the law of nature of contracting; therefore, the impediment having been removed, the prior consent suffices, which virtually perseveres in effect through conjugal copula, cohabitation, or through other external signs. - Therefore, the internal consent of the spouse conscious of the impediment acceding, expressed at least through similar external signs, the consent of each is united and the Matrimony is convalidated, etc.

In practice the first sentence is to be followed, at least outside the case of urgent necessity, which will be present if sanation in the root cannot easily be obtained, and from manifestation of the nullity of the Matrimony made to the other party, or from separation of the spouses, danger of grave evil, say of infamy, scandal, etc., is prudently feared. For then it will be lawful to use the second sentence, because in straits of this kind it is not prohibited to use an opinion even slightly probable, even with danger of the frustration of the Sacrament.¹ The present tenor of faculty XII of the schedule of the Sacred Penitentiary adds strength to this sentence: "And insofar as this certification" of the nullity of the Matrimony to the other party "cannot be made without grave danger, consent having been renewed according to the rules handed down by approved authors."

Quaer. 2° Must consent be renewed before the Pastor and witnesses?

Resp. 1° Affirmatively, if the impediment is public. The reason is, 1° because then the reason of removing or preventing scandal presses; 2° because the Briefs of the Dataria always thus require; 3° because otherwise the validity of the Matrimony could not be proved before the Church, since it is publicly established that the Pastor and witnesses were present only for the celebration of an invalid Matrimony, and thus the end intended by Trent would not be obtained; for the spouses could, after the Matrimony was clandestinely revalidated, separate, and with impunity enter new nuptials with others. Yet in this case the Ordinary can (and, when the impediment, at present occult, was therefore dispensed as public, or for the external forum, because it was prudently feared that it would become public, he must) not only dispense in banns, but also permit secret celebration in the Tridentine form, provided that afterwards (and likewise in the case in which what is now occult afterwards becomes public) scandal is removed by prudent divulgation. When nuptials have been contracted invalidly in a place where at least one of the two was not bound by the Tridentine law, secret renewal of consent, outside the case in which public renewal is imposed as a condition of the dispensation, is valid, and is even licitly permitted, if the other party, especially when non-Catholic, is unwilling to present himself or herself before a priest. But care must always be taken that scandal either not arise, or be removed by prudent divulgation.¹

Resp. 2° Negatively, if the impediment is occult. The reason is 1° because satisfaction has already been made to the law of Trent, or at least to its mind (namely, of meeting the inconveniences which arise from clandestine nuptials), through the presence of the pastor and witnesses in the Matrimony already contracted; 2° because otherwise infamy of the parties, scandal, and other inconveniences would follow; 3° because the practice of the Sacred Penitentiary, the Sacred Congregation of the Council, etc., thus bears. Thus against a few.² Yet if it can easily be done, it is sometimes usefully counseled that mutual consent be renewed at least before the confessor.

Quaer. 3° At least must a Matrimony, null because of an occult impediment, be revalidated before the Pastor and witnesses, if they at the time of Matrimony were conscious of the impediment?

Resp. The denying sentence seems more probable to St. Alphonsus. The reason is that the assistance of the Pastor and witnesses was prescribed by Trent, not so much for testifying to the validity of the Matrimony - which can be unknown to them in many ways - as for proving the external celebration of Matrimony, so that the danger may be met lest the same spouses enter other nuptials.

But the affirmative is also probable to the Holy Doctor; because the Pastor and witnesses, by assisting at Matrimony known to them as invalid, were witnesses only of the nullity of the Matrimony.³

Quaer. 4° In how many modes can the 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:

First Mode. If the spouse simply says: Our Matrimony is null because of some impediment; or: My confessor told me that it is null, ... and therefore let us renew consent.

Second Mode. If the spouse says: I did not have true consent when I contracted Matrimony; now I wish to furnish a new one. Do you also wish to furnish it? This mode is commonly admitted by authors, and rightly can be employed without a lie, since null consent is not true consent; and otherwise the spouse ignorant of the impediment thus sufficiently knows the nullity of the Matrimony.

Third Mode. If he says: I am troubled by scruples concerning the validity of our Matrimony, and therefore let us renew consent. This mode can be admitted according to the more common sentence with St. Alphonsus.¹ For it suffices that the other party place consent independent of the prior consent; but for this it is enough if he prudently doubts concerning the validity of the first Matrimony.

Various other modes are also presented by several Theologians; for example, if the spouse says to the other party: Say, I ask, if our Matrimony were null, would you not wish to contract again? Or: If you had not married me, would you not now wish to marry? etc. But deservedly those modes are rejected; because thus it is uncertain whether the other party intends to repeat consent into the preceding Matrimony, or rather to consent into a new one. Yet St. Alphonsus admits the former mode: Say, I ask, etc., in the case in which through it the other party would begin to doubt or suspect the validity of the Matrimony.²

Vol. II, Treatise on Matrimony, Ch. VII, Art. III, § II. On the Revalidation of Matrimony with Dispensation in the Root

n. ¶1635.

1635. - Dispensation in the root is the abrogation of an ecclesiastical law which introduced an impediment, in a particular case, joined with the rendering void of all effects which even before had followed from the law.

Therefore this dispensation produces its effect by removing from the midst the effects of the law, which, because of the nullity of the Matrimony, before the dispensation was granted, and even in the very act of contracting, were produced. - Thus Benedict XIV.³

Hence simple dispensation differs from dispensation in the root in this, that the former has its effect only from the time at which it is conceded, or from now, and therefore cannot exempt from renewal of consent. But the latter convalidates Matrimony from the time of Matrimony, or from then, not in this sense, that it effects that Matrimony, contracted nullly from the beginning because of an impediment, was not so contracted, but by removing from the midst those effects which, because of the nullity of a Matrimony of this kind, before the dispensation was granted, and even in the very act of contracting Matrimony, were produced (namely, defect of consent, nullity of the contract, illegitimacy of offspring, that is, its spiritual and temporal effects), so that, the defect of consent having been healed (which contract is the root), through a fiction of law [T. I. p. 478. col. 1. (6)] these effects before the Church are held as if they had never existed. Heiss, § 64. I.

n. ¶1636.

1636. Principles. - I. The Church, or the Supreme Pontiff, can dispense in the root of Matrimony as regards all impediments of Ecclesiastical Law. The reason is, 1° because to dispense in the root is nothing else than to take away an impediment not only for the future, but also for the past, or to take away the effects which it produced, so that before the Church they are held as if they had never existed. But in these things there is nothing which exceeds the power of the Church. Therefore. 2° Because this is established and confirmed from the practice of the Church, which for several centuries has 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.

II. But four conditions are required so that Matrimony can be convalidated by the aid of dispensation in the root, namely:

1° That the conjunction of the spouses had an extrinsic species of just Matrimony, and was not manifestly fornicarious. Thus Benedict XIV. The same also Cardinal Caprara requires. The reason is to be sought, not from the essence of the thing, as some wish, but from the pontifical will, as the celebrated Feije proves by examples.¹ - But the extrinsic species of Matrimony is present even in nuptials which, in a place where the diriment law of clandestinity did not oblige one or the other, were contracted invalidly because of an occult impediment - whether before a civil magistrate, or before a minister, or in another mode attesting the intention of Matrimony. Indeed the extrinsic species of Matrimony cannot be excluded from those Matrimonies concerning which it is seriously doubted whether in the place of celebration they were bound by the Tridentine law, and which were contracted in one or another mode said above. Feije.¹

2° That the consent of each has persevered; for the Church cannot convalidate consent retracted even from one party only. Otherwise, not rarely the Pontiff requires in the Rescript that it be established concerning the permanent consent of each party. But if that is not required, it suffices that no argument of revocation of consent is had, concerning which inquiry must be made not imprudently.²

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

This third condition is not required for the validity of the dispensation, if the dispensation is knowingly conceded without it by the Supreme Pontiff; otherwise, if it is conceded by a Bishop from a particular Indult, as among us.

4° That there is question of an impediment of Ecclesiastical Law; "for the Pontiff cannot heal consent vitiated by an impediment of natural or divine law, for example, of bond. But if an impediment of this kind has supervened after Matrimony celebrated invalidly because of an ecclesiastical impediment, for example, perpetual impotence, nevertheless the Matrimony can be sanated in the root; for with respect to future Matrimony this impotence would be antecedent, but with respect to the one already contracted it is subsequent. It is indeed difficult to conceive sanation in the root, since Matrimony truly does not become valid except from now, or when the sanation is applied, and therefore the impotence can truly seem to precede the Matrimony; but the reason of explaining is to be sought from the peculiar nature of sanation in the root, by which consent once actually furnished is healed through the abrogation of the impediment from then. We have at hand a sanation in the root of this kind conceded by Our Most Holy Lord Pius IX in the year 1848. Nevertheless the parties certainly cannot use Matrimony." Thus the celebrated Feije.³

Note. - Although ordinarily sanation in the root is given for occult nullity, nevertheless in some very difficult circumstances, and certain conditions being posited, it is also conceded for public nullity.¹ See n. 1632. q. 3°.

n. ¶1637.

1637. Questions. - Quaer. 1° Can dispensation in the root be obtained and applied, each party being ignorant of it?

Resp. Affirmatively. The reason is that knowledge of the dispensation is in no way required so that the Church can take away the effect of the law, or the obstacle which was standing in the way of the efficacy of consent; for the power of the Church is altogether independent of such knowledge. It is confirmed from the practice of the Church. For Clement XIII, as Collet reports, conceded to a certain Procopius (who seems to have been a Bishop) the faculty that he might sanate in the root, the parties not having been admonished, many Matrimonies entered invalidly because of too great an extension of faculties received. Other examples also of similar revalidation of Matrimonies are reported by others.

Quaer. 2° Can dispensation IN THE ROOT be conceded if both parties, when they contracted, knew the impediment?

Resp. 1° Negatively, according to the more common sentence, if the spouses in contracting clearly knew the nullity of the Matrimony. The reason is that, the invalidity of the Matrimony being known, true and properly so-called consent cannot be given into it, but only an intention of living in concubinage is had; and therefore consent cannot be healed, since from the beginning it was fictitious.

Resp. 2° Affirmatively, if the spouses in contracting, although they knew the impediment, nevertheless did not doubt that the Matrimony was null, or did not attend to its invalidity. Thus Cardinal Caprara seems to be understood, who supposes that dispensation in the root can be obtained for convalidating a clandestine Matrimony, when one party refuses to renew consent before the Church. In the same mode one seems to have to distinguish concerning Matrimonies contracted only civilly in places where the Tridentine Decree is in force.

Quaer. 3° Can a Bishop dispense IN THE ROOT, when he can dispense concerning diriment impediments from a particular Indult?

Resp. Negatively. The reason is that dispensation in the root requires greater power; and therefore it is not judged to be contained in other faculties. It is also proved from the practice of the Church, which always gives a special faculty when it intends to concede the power of dispensing in the root, as is given to our Bishops. See p. LXXIV. n. 6.

Quaer. 4° In what way is dispensation IN THE ROOT to be executed?

Resp. In the same mode as simple dispensation, adding in the formula the words: in the root. Thus, for example: "I, by Apostolic authority conceded to me, sanate and consolidate in its root the Matrimony contracted by you with N., and I declare legitimate the offspring received and to be received. In the name of the Father, and of the Son, and of the Holy Ghost." But no formula is had in the Roman Ritual. - But execution of this kind is not necessary per se. Hence it is to be omitted if it is better that neither spouse be made certain concerning the nullity of the Matrimony. Otherwise let it be done for the forum of conscience as regards that party which is conscious of the impediment and prepared to submit himself or herself to the execution of the dispensation; but publicly, or at least in such a way that it become publicly known, if the nullity of the Matrimony is public.¹

Corollary from the Things Said Concerning the Revalidation of Matrimony.

There are impediments which can cease by some fact. From the things said it is gathered, and in the following things it is more fully explained, in what way renewal of consent then ought to have place.

I. Concerning the case in which the impediment of fear ceases, the cause of fear having been removed, see n. 1599. I. Note, and n. 1630. q. 1°.

II. By change of domicile the impediment of clandestinity can cease, namely, when the parties celebrated clandestinely in a place where both were bound by the Decree Tametsi, and afterwards acquired domicile or quasi-domicile in a place where at least one party is not bound by it. In that case either sanation in the root is to be sought from the Holy See, if a sufficient cause is present (n. 1636. II. under 3°), or consent must be renewed, and this - by both or by one party only, according to the rules handed down in n. 1633 and 1634. q. 1° - publicly or occultly according as the circumstances (see n. 1634. q. 2°) demand either one; and, if there is question of a mixed Matrimony clandestinely contracted in a place where even heretics are bound by the Tridentine Decree, a dispensation concerning the impedient impediment of disparity of cult having been obtained. - Whether the nuptials of which there is question are convalidated by marital cohabitation alone, if the parties are ignorant of their nullity, is controverted. That the Apostolic See in practice applies the denying sentence is clear from the responses of the Sacred Office, 1842 and 1848, apud Perrone, De Matrim. Christ. Ed. Rom. T. II. p. 249-251.

If the parties have before contracted valid betrothals, and in the place where afterwards they obtained domicile or quasi-domicile they have had copula, there will be, for the external forum, presumed Matrimony. I say: "valid ... betrothals"; for invalid ones (for example, between a Catholic party and a heretical one) cannot induce a presumed Matrimony of this kind (n. 1525. § It is said: 5°; n. 1546. 3°. n. 1548 q. 1°. Note).

III. The diriment impediment of disparity of cult ceases through the reception of Baptism by the infidel party; in which case concerning the revalidation of Matrimony a determination must be made as above under II.

IV. By the death of the prior spouse the impediment of bond ceases between parties who, while that one was living, contracted. But nuptials in this case are not convalidated through sanation in the root, since this cannot be conceded while there is question of consent vitiated by an impediment of divine law, whether positive or natural (n. 1636 under 4°, compared with n. 1561 § The consent, p. 243 col. 2). Hence new consent is necessary, and that, according to the common doctrine (see Feije, n. 761) and according to the mind of St. Thomas,¹ must be furnished by each spouse, the party ignorant of the impediment having been certified,² publicly or secretly according as the circumstances (n. 1634. q. 2°) have demanded. - Note that in this case the impediment of crime can be present, namely when someone, while a legitimate consort was living, attempted and consummated Matrimony with another, each having previously known that bond.

Vol. II, Treatise on Matrimony, Appendix: I. On the Mode of Proceeding if Revalidation Can in No Way Have Place, or Before It Can Be Done

n. ¶1638.

1638. - I. If the impediment is indispensable (that is, such in which dispensation cannot be given or is not given) and public, the parties are to be treated as public concubinaries.

II. Say the same if it is public and dispensable. Yet if, in this case, the parties consent indeed to revalidation, but not to separation, the former is regularly to be preferred to the latter (that is, unless a sad outcome is feared from revalidation). Then the pastor in the supplica by which he asks dispensation will expose that the parties do not consent to separation, nor will easily consent, so that the one dispensing, according to his prudence, may enjoin it either not at all, or only for a very brief space of time.

III. If it is indispensable (for example, impotence), occult, and known to each party, place can be given to cohabitation after the manner of brother and sister, but only in a very rare case (if the parties are elderly²); for almost always that remedy, because of the danger of incontinence, will have to be rejected.

IV. If it is dispensable, occult, and known to each party, separation as regards the bed is necessary. But if from the disposition and experience of each or either party it is known that a proximate danger of incontinence exists which cannot otherwise be removed, the parties must also be separated as regards cohabitation, with the separation, if it can be done, colored by some pretext (for example, of a journey), so that sin, scandal, and infamy may be guarded against. But if separation of cohabitation, or even of bed, cannot be obtained, the danger of sinning is to be forestalled in the better mode in which it can be done. But the pastor, or the confessor if the impediment is known from Confession, should hasten the dispensation, which in this case is almost always to be chosen.

V. If it is indispensable, occult, and unknown to each party, the parties ordinarily are to be left in good faith, because if they were admonished, no remedy for guarding against formal sins could be employed except either separation or cohabitation after the manner of brother and sister. But very grave inconveniences are accustomed to stand in the way of separation; and a proximate danger of incontinence stands in the way of cohabitation. - But if it is dispensable, and there is hope that the parties, warned concerning the nullity of their Matrimony, will obey those things which must be enjoined upon them (separation of bed and, if it is judged necessary, of cohabitation, until the dispensation has been obtained), revalidation of the marriage is almost always to be chosen and the dispensation is to be hastened. But if fruit from admonition is not hoped for, it will have to be distinguished thus. If there is fear that neither party will obey those things which must be enjoined, each party is to be left in good faith until the dispensation has been obtained, which is regularly to be sought (with the parties, as is clear, unaware). I say: regularly, that is, unless there is fear that the parties will refuse the dispensation, or will not obey its conditions, or, the nullity of the Matrimony having been known, will depart from one another with scandal or with harm to the offspring, etc. Then, the dispensation having been obtained, it is communicated to the parties together with admonition concerning the nullity of the marriage. But if only one party can be admonished without grave inconvenience, but not the other (say, because the crime of the former gave cause to the impediment or because of another cause), regularly neither is to be admonished and dispensation in the root is to be sought. This having been obtained, let the party who can be admonished be admonished, so that, the sanation having been applied, he or she may furnish new consent. - But if the party who cannot now prudently be admonished is foreseen to be able afterwards (that is, after the relaxation of the impediment has been obtained) to be admonished without grave inconvenience, first, ordinarily with each party unaware, let not sanation in the root but simple dispensation be obtained, so that, this having been obtained, the consort may be admonished by the consort concerning the nullity, the dispensation may be applied, and consent may be renewed by each party.

VI. If it is indispensable, occult, and known to one party, this party, as is clear, would illicitly both render and ask the debt; he or she must manifest the impediment to the consort, and nothing remains except either separation, or, in a very rare case, cohabitation after the manner of brother and sister.

VII. If it is dispensable, occult, known to one party, and grave inconveniences are not feared from manifestation (for example, separation, or, in the case in which the impediment arises from the crime of the party knowing the nullity, the infamy of this party, etc.), the impediment, or at least the nullity of the Matrimony, must regularly be revealed to the ignorant party by the conscious party. This having been done, the nuptials are ordinarily to be revalidated, and this through simple dispensation. - But if, as will often happen, grave inconveniences are feared from manifestation or the impediment has arisen from the crime of the conscious party, revelation is to be omitted and dispensation is quickly to be procured, and this ordinarily through sanation in the root. Meanwhile, as is clear, to the conscious party both rendering and petition of the debt is forbidden; and therefore the debt is to be denied in the better mode in which it can be done.

II. On Judgment in Matrimonial Cases.

n. ¶1639.

1639. - I. In the internal forum, whether penitential or extra-penitential (n. 149), many matrimonial cases are resolved by confessors, by pastors, by Ordinaries, with no peculiar form of judgment, but only with those things observed which natural and positive law demand according to the species of the fact and the circumstances.

II. For the external forum we note these things.

1) The judge of matrimonial causes. - a. For the whole world, it is the Pope; the Sacred Congregation of the Council; the Sacred Congregation of the Office or Inquisition in certain cases. - b. The Metropolitan for inhabitants both of his own diocese and, in the case of appeal, of his own province. - c. The Bishop for his own subjects, and, according to the more common sentence, also his Vicar, and, as it seems, the Capitular Vicar (among us, the Administrator), the See being vacant. - d. Delegates by the Pope or by the Bishop.

2) The actor can be: a. For impeding the celebration of Matrimony, whoever knows an impediment (n. 1540, 1541). b. For asking divorce as regards bed and habitation, the innocent spouse alone (n. 1553. q. 4°). c. For asking a sentence of nullity of Matrimony, the impediments because of which this sentence is sought must be distinguished. - In the case of fear and error, only the spouse who erred, who was deceived by fear, is admitted; but he or she is not admitted after, the fear and error having ceased, he or she has cohabited. - In the case of impotence, the spouses themselves alone are admitted, since they can, if they please, cohabit (not however licitly except in the very rare case, as was said above in n. 1638) after the manner of brother and sister. - In the remaining cases of impediments, all who are conscious of the impediment are regularly admitted, and this if they can prove it fully, or give sufficient indications for inquiry. The ecclesiastical judge himself also, if the impediment is manifest and public, inquires by his own authority, no one denouncing or accusing, and pronounces concerning the nullity. - Who are repelled as actors, see the Decretals.¹

3) Witnesses for or against a contracted Matrimony are admitted before the rest, who are presumed to have more certain knowledge of the impediment (as parents, blood relatives, relatives by affinity, if there is question of consanguinity or affinity), and are not of suspect faith; and likewise witnesses otherwise suitable according to the general principles which are handed down by the Canonists.²

4) Semiplena proof (such as is that which is sought from one trustworthy witness, or from common rumor, or from another indication) suffices so that the celebration of Matrimony may be impeded (n. 1541 q. 3°). - But so that the nullity of a Matrimony already contracted may be declared, full proof is required. But although elsewhere one's own confession is called the best proof, nevertheless if the married persons were to confess in court an impediment, the Matrimony would not for that reason immediately have to be defined as null, unless from other proofs the truth appeared: namely lest spouses, weary of cohabitation, be able to collude and feign an impediment.³ Cf. n. 1548, q. 7°.

5) A sentence for or against the value of Matrimony by no lapse of time passes into a thing judged;⁴ and therefore if a new matter which was unknown or not deduced is detected, the cause can again be referred to judgment.⁵

6) The judicial form in matrimonial causes is summary; but if there is question of the value or nullity of Matrimony, under penalty of nullity, even when the Matrimony is notoriously and evidently invalid,⁶ those things must be observed which are described by Benedict XIV in the Constitution Dei miseratione, November 3, 1741, of which the principal dispositions are that, at the individual acts of the trial, a defender of Matrimony, that is, of its value, be present, and that one sentence of nullity not end the case and therefore appeal be made until two conforming sentences concerning nullity are had. Van de Burgt, De Matr. n. 525-534.

Merkelbach, Pastoral Questions

Benedict H. Merkelbach, O.P. — 19 passages

Ch. VIII, Article I: Concerning the Convalidation of Matrimony in General

n. 241.

- I. Diverse remedies to be applied to an invalid matrimony.

n. ¶6775.

In four ways the case of an invalid matrimony can be met:

n. ¶6776.

a) By procuring a juridical declaration of nullity and separation of the spouses.¹

¹ More often, for obtaining that declaration of nullity, only the judicial way lies open. Sometimes, however, one can proceed by the administrative way. Cf. Can. 1990.

n. ¶6777.

b) By permitting the putative spouses to continue to cohabit as brother and sister.

n. ¶6778.

c) By leaving them in good faith.

n. ¶6779.

d) By convalidating the matrimony.

n. ¶6780.

But, as is evident, these means cannot be applied indiscriminately; rather, one must use this or that one according to the diverse cause of nullity and also the diverse disposition of the putative spouses.

n. ¶6781.

a) A declaration of nullity is rarely to be advised and is to be restricted to necessary cases: suppose when the nullity of the matrimony cannot be sanated, or when each spouse or either spouse in no way wishes to cohabit with the other party, or wishes to contract another matrimony, etc...

n. ¶6782.

b) Very rarely is it expedient, on account of grave danger of sinning, to permit putative spouses to cohabit as brother and sister.

n. ¶6783.

c) When each is ignorant of the nullity, often it is better to leave them in good faith, provided, however, that the nullity is occult.

n. ¶6784.

d) But insofar as it is possible, the convalidation of matrimony ought to be preferred.

n. 242.

- II. Notion of convalidation.

n. ¶6786.

a) Convalidation is called the act by which a matrimony contracted invalidly is made valid.

n. ¶6787.

b) A twofold species of convalidation is distinguished:

n. ¶6788.

Simple convalidation.

n. ¶6789.

Sanation in the root.

n. ¶6790.

c) They differ from one another in this:

n. ¶6791.

Simple convalidation always requires that consent be renewed, while sanation in the root dispenses from that renewal.

n. ¶6792.

Simple convalidation regards only the future, while sanation in the root exerts its force even into the past, through a fiction of law, with respect to canonical effects.

Merkelbach, Summa Theologiae Moralis

Benedict Henry Merkelbach, O.P. — 17 passages

Vol. III, Special Moral Theology: On…, Treatise: On Matrimony, Third Part: On the Impedim…, Question Five: On the Convalidation of Matrimony

927. Convalidation of matrimony is that act by which matrimony entered invalidly is rendered valid; just as an invalid contract which receives value is said to be convalidated.

Matrimony entered either in good or in bad faith can be invalid on account of a vice, defect, or impediment. This can be met: a) by procuring a declaration of nullity from ecclesiastical authority and separation of the spouses, which nevertheless is to be restricted to strictly necessary cases, for example when both spouses or either spouse in no way wishes to cohabit with the other party or wishes to enter another matrimony, when the matrimony is foreseen to be unhappy or to carry with it danger of perversion, or when the nullity of the matrimony cannot be healed, nor are greater inconveniences feared; b) by permitting the putative spouses to continue to cohabit as brother and sister, which is rarely expedient because of the danger of incontinence; c) by dissimulating the nullity and leaving the spouses in good faith, which is not licit except for a grave and urgent cause; d) ordinarily, however, by convalidating the matrimony.

In practice, Noldin observes, Th. M. III, n. 657, the confessor must take care lest he incautiously declare the nullity of a matrimony.

If the impediment is indispensable and known to neither party, let him prudently consider whether he can admonish them concerning the nullity and separation; if they can neither be separated without scandal nor cohabit without danger of sinning, let him leave them in good faith.

If an indispensable impediment is known to one or both, the spouses are altogether to be separated. What kind of separation is to be urged depends on the circumstances, namely:

a. If the nullity of the matrimony can be juridically proved, they are to be separated perfectly by the sentence of an ecclesiastical judge; unless, however, to avoid scandal or infamy, they wish to cohabit as brother and sister and can do this without danger of incontinence.

b. If the nullity of the matrimony cannot be juridically proved and from cohabitation danger of incontinence arises, they are to be separated under the appearance of divorce from bed and cohabitation.

c. If from cohabitation there does not arise danger of incontinence, it suffices that they be separated from the common bed and cohabit as brother and sister.

If the impediment is dispensable, revalidation must regularly be procured; in the meantime, however, until the matrimony can be revalidated after a dispensation has been obtained, these things are to be observed:

a. If the nullity of the matrimony is publicly known, the spouses are to be separated from bed and cohabitation until a dispensation from the impediment is obtained.

b. If the nullity of the matrimony is known only to both parties, it must first be requested that they abstain in the meantime; this will not be very difficult if after one or a few days a dispensation can be had, as, for example, in the place of the episcopal curia or near it. Permission must be sought to conduct the matter outside confession and to approach the Ordinary. If there would have to be a long wait with danger of incontinence, which could not be avoided by a practical remedy or subterfuge, or if permission to act outside confession were not given, the confessor should dispense according to can. 1045, § 3 (n. 922, 2°).

c. If the nullity of the matrimony is known to one party only, this party should admonish, when it can easily be done, the other party to abstain in the meantime; if this cannot be done, the same procedure is followed as above, under b; after the dispensation, the renewal of consent by the conscious party suffices.

d. If the nullity of the matrimony is known to neither party, the confessor should prudently deliberate whether he can admonish the spouses without greater evils following; if he can admonish them, let him proceed as before; if he cannot admonish them, they are to be left in good faith until a dispensation is obtained and the matrimony can be convalidated.

928. There is a twofold mode of convalidation: simple convalidation and sanation in the root, between which there is a twofold difference:

a) simple convalidation always requires that consent be renewed; sanation in the root is made without renewal of consent;

b) simple convalidation regards the future; sanation in the root also exerts force into the past, insofar as by a fiction of law it is drawn back as to canonical effects.

Concerning each mode one must speak. But since through the revalidation of matrimony between Christians, in whatever way it is done, the sacrament is administered and received, care must be taken, as far as possible, that the spouses be in the state of grace when the matrimony is revalidated, i.e., when consent is renewed or sanation in the root is applied.

Sabetti-Barrett, Compendium of Moral Theology

Aloysius Sabetti, S.J., and Timothy Barrett, S.J. — 2 passages

Vol. II, Tr. XVIII, Chapter IX. On the Revalidation of Marriage

n. 926.

A marriage can be invalid 1°. on account of defect of consent; 2°. on account of defect of the prescribed form, namely on account of clandestinity; 3°. on account of the inability of the parties induced by force of some ecclesiastical impediment. - Hence:

I say 1°. § 1. For convalidating a marriage invalid on account of a diriment impediment, it is required that the impediment cease or be dispensed, and that at least the party conscious of the impediment renew consent.

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

The reason for the first is that marriage must be between capable persons who consent; therefore it is necessary that the diriment impediment either cease or be dispensed, and thus the parties become capable persons who may consent into marriage.

The reason for the second is ecclesiastical law itself, demanding this renewal, which from the nature of the thing, once the impediment ceases, is not required, as becomes clear from sanation in the root, by force of which the Church holds the old consent as sufficient.

Therefore two things are required for convalidating: the capability of the parties through cessation of the diriment impediment or dispensation, and renewal of consent at least by the party conscious of the impediment.

I say 2°. Renewal of consent must be a new act of the will into the marriage which is established to have been null from the beginning (Can. 1134).

I say 3°. § 1. A marriage invalid on account of defect of consent is convalidated if the party who had not consented now consents, provided the consent furnished by the other party perseveres.

§ 2. If the defect of consent was merely internal, it is enough that the party who had not consented consent internally.

§ 3. If it was also external, it is necessary also to manifest the consent externally, either in the form prescribed by law, if the defect was public, or in another private and secret mode, if it was occult (Can. 1136).

I say 4°. A marriage null on account of defect of form, in order that it become valid, must be contracted anew in legitimate form (Can. 1137).

The reason is that the law prescribing the form of celebration urges all subjects. If the invalidity is public, it must be convalidated publicly before the Pastor and witnesses, but it can be entered privately before the same, with reparation of scandal made through publication of the convalidation. But if one party wished to approach the Pastor and the other refused, the latter is to be induced to renew consent through a proxy before the Church in the form prescribed by canon 1095. If the invalidity is occult, it must be convalidated occultly in the customary form. Finally, if one party obstinately refuses, recourse must be had to dispensation in the root in favor of the innocent party. - Cf. Heiss, parag. 62. - Wernz, v. 4, 649. But if the party wishing to convalidate the marriage, together with the other party, should proceed even in fraud of the law to a region of which in Canon 1098, n. 1°, and there, with the conditions fulfilled, should renew formal matrimonial consent before two witnesses after the nullity of the marriage had been known, the marriage would be convalidated. - Cf. S. C. Sacr. 12 March 1910 ad III.

Slater, Cases II

Thomas Slater, S.J. — 12 passages (filed under the subtopics)

Slater, Cases II, Matrimony, Case 35. Revalidation of Marriage

Anna, an Anglican by religion, was staying for some weeks in a certain place to which many are accustomed to resort for the sake of health. There she asks Philip, the local Catholic missionary, to receive her into the Church. Philip finds her excellently instructed and well disposed, and that nothing seems to prevent her from being received into the Church immediately. Nevertheless, he finds that she is joined in marriage with a cousin who is likewise Anglican, who thinks the marriage is valid and would in no way consent to renew consent again publicly or privately. Hence it is asked:

Who are subject to the matrimonial laws of the Church? Are heretics?

Does ignorance or grave inconvenience excuse from a diriment impediment of marriage?

Vol. III, Case XXI: Healing a Marriage at its Root · Vol. IV, Case LVI: Revalidation of Marriage After an Arbitrary Separation · Vol. IV, Case LXXII: Revalidation of an Invalid Marriage · Vol. V, Case XCVIII: Not Radical S…, But Silence

To which priest does it belong to treat matrimonial causes?

n. ¶5.

What must Philip do?

n. ¶6.

Solution

The first question was answered above, p. 292;

n. ¶7.

Does ignorance or grave inconvenience excuse from a diriment impediment of marriage?

n. ¶8.

Neither ignorance nor a grave inconvenience, affecting individuals only, excuses from a diriment impediment. A grave inconvenience of a public nature does excuse.¹

1 Manual of Moral Theology, vol ii, 285 f.

n. ¶9.

To whose office does it belong to treat of marriage cases?

n. ¶10.

Marriage is a parochial sacrament and it belongs to the parish priest to treat of anything concerning it. Where there are several priests who have the cure of souls in one parish, it belongs to the head priest to treat of marriage cases, but with due dependence on him the others may also undertake them.

n. ¶11.

The case. Ann’s marriage with her cousin was invalid on account of the diriment impediment of consanguinity in the second degree of the collateral line. It is of its own nature a public impediment, and if Ann does not know of it now, she may find it out at any time. To prevent future difficulties it should be revalidated, and also because if the parties are in good faith, even material sins should be prevented as far as possible. Philip therefore should write to the bishop of the diocese in which Ann is staying, if she has been there for at least a month, and where she will be received into the Church, and ask him to grant a dispensation for revalidating a mixed marriage between cousins in favor of one who has been converted. The dispensation should be granted to take effect when it is executed. Ann should induce her husband to appoint a proxy for him; it is to be presumed that he will do at least this to please his wife. Then on the day on which Ann is received into the Church, Philip can execute the dispensation at once, and revalidate the marriage by causing Ann and the proxy to go through the form of marriage before him and two witnesses. If

n. ¶12.

Ann has not lived at the place for a full month, she should be received into the Church and dispensed in her own diocese, unless her bishop has power to dispense his subjects during their absence from the diocese, as bishops sometimes have.¹

1 Putzer, Comment, in Facult. Apostol., n. 52.

The Casuist

Various; ed. S. Woywod, O.F.M., and J. A. McHugh, O.P. — 37 passages

Vol. III, Case XXI: Healing a Marriage at its Root

Applied correction from Woywod’s opening insert: Case XXI, page 114.—The Code in Canon 1138 says that the dispensation from renewing the consent can also be given when either one or both parties are ignorant of the invalidity of their marriage.

Question.—On page 54, vol. II, of the “Casuist,” it is said that a Sanatio in radice may be procured and applied without renewal of consent of either party. On the contrary, it is stated on page 358 of Father Slater’s Moral Theology, that “a necessary condition for the exercise of sanatio in radice is that before the sanatio is applied, one of the parties should be aware of the impediment.” Do I understand this aright? If so, how conciliate these two pages?

Answer.—There is no discrepancy between what Father Slater says and what is stated in the “Casuist.” On the page quoted, the “Casuist” remarks incidentally that a sanatio in radice may be applied, even though both parties to the marriage remain ignorant of the existence of the diriment impediment that invalidated their marriage at the time when it was contracted. That a sanatio in radice may be so applied is quite certain. Any handbook of moral theology will bear this out. For instance, Father Noldin says: “A radical sanation can be made in two ways: either so that a renewal of consent is required, or without a renewal of consent. According to ecclesiastical usage, sanation without renewal is ordinarily made, especially where the putative spouses are ignorant of the nullity of their marriage and cannot be admonished about it; nevertheless the Supreme Pontiff sometimes commands a renewal of consent as a penalty, namely where one party acted in bad faith at the time of the celebration. But if new consent is prescribed, it is necessary for the validity of the marriage. From this it is evident that the sanation of a marriage can be made even without either party’s knowledge and is in fact made whenever harm is feared from an admonition; for no act on the part of the spouses is required for the sanation” (de Mat. n. 661, 2).

II. The question that Father Slater treats on page 358 of his “Moral Theology,” is quite distinct from the above. Father Slater treats the question whether the bishops of the United States have received faculties from the Holy See to grant a sanatio in radice, even though both parties to the marriage are allowed to remain in ignorance of the diriment impediment that invalidated their marriage when it was first contracted. The question treated by Father Slater, therefore, is a question of the comprehensiveness of the faculties granted by the Holy See to the American bishops to dispense from some diriment impediments to marriage. Father Slater maintains, and with reason, that the American bishops have no faculties from the Holy See to grant a sanatio in radice while both parties to the marriage remain in ignorance of the diriment impediment. One of the parties, at least, must be made aware of the invalidity of the marriage and the removal of the diriment impediment by the sanatio in radice, and such party must renew the consent. The “Casuist,” therefore, merely says that a sanatio in radice may be applied, inscia utraque parte; Father Slater says that the American bishops have not received faculties from Rome to grant a sanatio in radice, except on condition that one of the parties to the marriage be made aware of the diriment impediment and its removal through the Sanatio, and such person renew the consent. And since this latter question is of importance, it may be well to review it briefly. Among the faculties granted by the Holy See to the American bishops, to be renewed every five years, is the following one:

n. ¶5.

“Of radically sanating marriages already contracted when it is discovered that a diriment impediment was present from which he himself can dispense by an indult of the Apostolic See, and when it would be a great hardship to require a renewal of consent from the innocent party, provided, however, that the party aware of the impediment is admonished concerning the effect of this sanation.”

n. ¶6.

As the interpretation of this faculty had given rise to much controversy and serious doubts were entertained by bishops and priests concerning its application, the Bishop of Covington, in 1906, wrote to the Congregation of the Holy Office for an authentic interpretation. Among the questions proposed by the Bishop of Covington concerning the application of this sanatio in radice was the following: Whether the American bishops could apply this faculty in a case where both parties to the marriage are aware of the nullity of their marriage, but one of them cannot be induced to renew the consent? “Whether there is scope for the faculty if both parties indeed know the nullity of the marriage, but one of them cannot be induced to renew consent?” To this the Holy Office replied:

n. ¶7.

“No, unless it is established that true consent was given under the appearance of marriage and that the same consent perseveres on the part of each.”

n. ¶8.

The bishop then inquired, further, whether the sanatio in radice might be applied in case both parties are ignorant, hic et nunc, of the invalidity of their marriage, provided later on one of the parties be informed that their marriage has been validated by the sanatio in radice? “Whether there is still scope for the faculty if both parties here and now are ignorant of the nullity of the marriage, provided that afterward one party is admonished concerning the sanation obtained and its effect?” To this the Holy Office replied: “As set forth, no.”

n. ¶9.

From this answer of the Holy Office it is evident that if both parties to the marriage contract be ignorant of the nullity of their marriage, the American bishops cannot exercise the faculty sanandi in radice, even though one of the parties be informed later on that the sanatio had been applied and that its effect was the curing of the marriage. In other words, before the American bishops can exercise their faculty of sanandi in radice, one of the parties to the marriage must be made aware of the invalidity of the marriage previous to the exercise of the faculty sanandi in radice. There is no question here of the power of the Holy See to grant a sanatio in radice and to cure a marriage, even though both parties to it be ignorant of its nullity. The question here at issue is whether the facultas sanandi in radice granted by the Holy See to our bishops is restricted. And it is evident from what has been said that it is restricted.

n. ¶10.

But suppose that both parties to the marriage are ignorant of the nullity of their marriage and neither of them may be informed of its nullity without great hardship and grievous scandal, what is to be done in such a case? Both parties are to be left in good faith, or, if it is feared that the married parties may learn later on of the nullity of their marriage, to their own great injury and suffering, recourse may be had by special letters to the Holy See for a sanatio in radice, utraque parte inscia impediment, which sanatio, if granted, will be valid or authentic also in foro externo, to prove the validity of this marriage, should it be subsequently attacked. The rescript that the Holy See forwards in such a case granting the sanatio, should be carefully guarded by the bishop for possible future use in foro externo.

n. ¶11.

To sum up briefly, therefore, we say: 1. If both parties to a marriage, which is null and void on account of some diriment ecclesiastical impediment, can be induced to renew their consent after the impediment has been dispensed, they must renew their consent.

n. ¶12.

All that is needed in this case is a simple dispensation from the diriment impediment and a renewal of consent.

n. ¶13.

If one of the parties to such a marriage be ignorant of the nullity of the marriage and cannot be informed of it without great hardship—magnumque fore incommodum requirendi a parte innoxia renovationem consensus—then a sanatio in radice may be applied, provided that the party aware of the nullity of the marriage renew the marriage consent.

n. ¶14.

Where both parties to the marriage are ignorant of its nullity, - one of them must be informed of such nullity before the American bishops can grant a sanatio in radice.

n. ¶15.

Where both parties are ignorant of the nullity of their marriage, and it is impossible to inform either of them of this fact, recourse must be had to the Holy See for a sanatio in radice, utraque parte inscia nullitatis.

Vol. IV, Case LVI: Revalidation of Marriage After an Arbitrary Separation

Rufus and Veronica were married according to the rites of the Church, but as he had sinned with her sister before his marriage, and had obtained no dispensation, their marriage was invalid before the interior forum.

He left Veronica of his own accord, in consequence of family quarrels; long after, he went to confession and disclosed his anxiety regarding the invalidity of their marriage, asking for advice. The question arose: "Is a revalidation in the interior forum possible after a separation of this kind has taken place?"

It is certainly possible if they both renew their consent, provided they begin to live together again; but a sanatio in radice cannot be effected, if one party plainly no longer intends to regard the other as a partner.

Provided they are reconciled, a revalidation of their marriage can take place; but if they continue to live apart, an ecclesiastical recognition of the nullity of the first marriage might be obtained by means of oaths, and both would be free to marry again, though their children would be legitimate, owing to the bona fides of the one party.—Honorius Rett, O.F.M.

Vol. IV, Case LXXII: Revalidation of an Invalid Marriage

Rufina apostatized from the Catholic faith, and becoming a Jewess, was married before a Rabbi to a certain Samuel. After some time the latter asked for baptism. The priest to whom he applied, after obtaining the parish priest's permission, asked and received the necessary faculties from the ordinary, viz., leave to baptize, authority to reconcile the apostate, and a dispensation from publishing the banns of marriage three times. This priest, who had no regular care of souls, was asked expressly by the parish priest whether he would undertake the whole matter, and answered in the affirmative, subject to the parish priest's permission, who thereupon said: " That is given."

On the appointed day the priest awaited in the sacristy the rector, who on his arrival exclaimed: " It was not necessary to wait for me. Go right ahead," and went away. Being convinced that he thus had received all the necessary authorization, the priest baptized Samuel (he had previously reconciled Rufina), proceeded to the oath of manifestation, and then married them before two witnesses. Having completed the ceremony, he was summoned to the rector, who addressed him thus: " I hear you married them! Why, you had no delegation for that." The priest was astonished, but said that he would recall the couple, to renew their consent. The rector, however, answered: " No, let them go now. You could presume the delegation to have been granted." " I beg your pardon," said the priest, " there is no such thing as a delegatio praesumta, though there might be a tacita, if you had any idea that, in consequence of your words, I should perhaps marry the couple, and, in case I did so, you were willing to raise no objection." The rector said shortly: "Very well." What was to be done? The priest was undoubtedly right in his action as well as in his opinion.

He devised the following way out of the difficulty. He went to the Bishop of the diocese, and asked him as parochus ordinarius to delegate his powers to him, as a precautionary measure. Then, after leaving the married couple in good faith for a short time, he took an opportunity later on of making them renew their consent conditionally in the presence of two witnesses, under the pretext that there had been some mistake in a matter of form.—Honorius Rett, O.F.M.

Vol. V, Case XCVIII: Not Radical S…, But Silence

Case.—Caja had in the unmarried state by sinful intimacy with Cajus, a wealthy and respected citizen, borne him a daughter, Caroline. This has been kept a profound secret, and it never became known that Cajus was the father of Caroline.

Now Caroline married, in forma ecclesiae consueta, without having the slightest suspicion, her cousin Charles, the son of a brother of Cajus. The impediment of blood relationship of the second degree was not discovered; it was known only to Caja and Cajus, and these two kept silence. Indeed, Cajus, pleased at the idea of providing at the same time for his natural daughter and his nephew, presented to the young couple a house as a wedding-gift and intended to make them the heirs to all his property. Thus Charles and Caroline live together in the best of harmony, they have several children, and naturally think a great deal of “Uncle.” Caja, however, is a victim of remorse, since through her fault her daughter is materially living in concubinage; but, she does not dare to proclaim the paternity of Cajus, lest she defame him and destroy moreover the happiness of the couple. Finally she makes the whole matter known to her confessor and asks his advice and assistance.

Question.—Quid faciendum?