Sanation in the Root

665. Declaration. 1. Sanation in the root is dispensation from a diriment impediment which stands in the way of matrimony; when this has been granted, the supreme pontiff heals the matrimonial consent, truly but invalidly furnished, from nullity in such a way that he renders the matrimony valid and removes the effects of nullity.

The first example of a matrimony sanated in the root occurs under Boniface VIII (d. 1303); afterward invalid marriages were more frequently revalidated by this way, especially where many invalid marriages had to be convalidated at the same time.

a. Sanation of matrimony in the root must be understood in this way. The root of matrimony to be healed is consent. Now because of the diriment impediment which stood in the way from the beginning, the consent was invalid, and this invalid consent still endures. Now the supreme pontiff by dispensation removes the law invalidating the consent; when this has been removed, he heals the consent invalid at the beginning and renders it fit for effecting a valid matrimony. Ordinary dispensation does not concern the consent, but only removes the invalidating law; when this has been removed, power is given to the putative spouses to elicit a new and valid consent. But dispensation in the root concerns the consent invalid from the beginning, which, when the invalidating law has been taken away, it renders effective for producing the matrimonial bond. Moreover, by the same act of sanation, the supreme pontiff wills that the matrimony, as regards juridical effects, be held as if it had been valid from the beginning.

b. Sanation in the root, the diriment impediment having been removed by dispensation, has two proper effects: the convalidation of the matrimony and the legitimation of the offspring. The former is produced from now, i.e. from the day of the granted and applied sanation; the latter is produced from then, i.e. from the day of the contracted matrimony. But these two are not always granted together; for if either spouse has already died, legitimation is granted without convalidation, which is impossible. Likewise, while the spouses are living, it can happen that the matrimony is revalidated, but the legitimation of the offspring, if the offspring was procreated in adultery, is impossible.

c. From these things it is clear that there is chiefly a twofold difference between each species of revalidation: sanation in the root does not properly and necessarily require a new consent; the matrimonial bond arises from the first consent healed from inefficacy. But in revalidation made in the ordinary way, new consent must be formally furnished; the matrimonial bond arises from the new consent. Sanation in the root extends its effects even to past time; ordinary revalidation, however, only to future time.

2. By ecclesiastical use sanation is usually done without renewal of consent, especially where the putative spouses are ignorant of the nullity of their matrimony and cannot be admonished concerning it. Nevertheless the supreme pontiff sometimes prescribes a renewal of consent as a penalty, namely where one party acted in bad faith at the time of celebration. But if new consent is prescribed, it is necessary for the validity of the matrimony.

From these things it is clear that the sanation of matrimony can be done even with each party unaware, and in fact is done as often as harm is feared from admonition; for on the part of the spouses no act is required for sanation.

3. The power of sanating matrimony in the root belongs to the Roman pontiff alone. Nevertheless, in our times this power is also granted to bishops by special indult, especially in mission regions, "when it is discovered that there was present a diriment impediment over which they themselves can dispense from an indult of the Apostolic See, and that there would be great inconvenience in requiring from the innocent party a renewal of consent."

¹ Cn. 1138-1141.

666. Four conditions are required so that sanation in the root can be done:

1. That the impediment which stood in the way of the validity of the matrimony from the beginning be of ecclesiastical law, not of natural law or of divine law, because in these the Church cannot dispense.

It is manifest that the supreme pontiff cannot sanate a matrimony invalid because of an impediment of divine law which still endures. But if there stood in the way of the matrimony an impediment of natural or divine law which ceases of itself, e.g. the bond, he certainly could sanate the matrimony in the root after the impediment ceased; yet the Church does not sanate it, not even from the moment of the cessation of the impediment (cn. 1133, 2), as it seems, in punishment of the spouses. Thus, one who, during a legitimate matrimony, invalidly contracts another matrimony, after the prior spouse has died can obtain the convalidation of the second matrimony not through sanation in the root, but only through renewal of consent.

2. That in the beginning true consent was given; for the root of matrimony, or consent, is healed; but what in no way exists cannot be healed.¹

a. If one party only gave true consent and in good faith thinks the matrimony to be valid, his or her consent can be healed; but the other party must renew consent. If each spouse, knowing the nullity of the matrimony, contracted in bad faith, the matrimony cannot be sanated in the root, because no true consent was present.

b. Even civil matrimony can be sanated in the root from a just cause, and in fact, when a grave cause exists, it is usually sanated, provided that true matrimonial consent was given from the beginning. Besides a grave cause for granting sanation, two things are required in this case: that in contracting civil matrimony true matrimonial consent was present, and not only the intention of entering an illicit union or of living in concubinage; then, that in the case of the granted dispensation scandal be absent. Scandal will be absent if it is unknown that only civil matrimony had been contracted.

3. That the consent given in the beginning endures on the part of each; for matrimony begins to be valid through sanation. But a valid matrimony cannot begin except through mutual consent; yet consent is not renewed in sanation. Therefore it must at least endure.

a. The question whether consent must endure virtually, or whether it suffices if it endures only habitually, seems to be useless; for in spouses who cohabit and live a matrimonial life, it certainly endures virtually. Hence sorrow once conceived concerning the entered matrimony, or even repeated more often, does not stand in the way of sanation. Likewise, an interpretative intention of departing does not stand in the way of the required duration of consent, but only a positive will of dissolving the matrimony. Matrimony cannot be sanated when both spouses or either spouse is dead; but nothing prevents the matrimony of deceased spouses from being sanated as regards juridical effects, especially as regards the legitimacy of offspring.

b. If the matrimony was contracted in good faith on the part of each from the beginning, and afterward, when the impediment had been discovered, the spouses persevered in the matrimony against conscience, the matrimony can nevertheless be sanated in the root, provided the consent given at the beginning still endures.

4. That there be a proportionately grave cause. For although the sanation would be valid which the supreme pontiff granted without cause, nevertheless for the dispensation to be granted licitly there is required a cause which ought to be the graver, the greater the favor is which is granted by this dispensation.

In a fourfold case there is present a sufficiently grave cause, and therefore in this fourfold case sanation in the root can be sought:

a. if one party cannot be brought to renew consent and nevertheless wishes to remain in the matrimony;

b. if the nullity of the matrimony is known to one party only, and cannot be revealed to the other party without grave inconvenience;

c. if both spouses are in good faith and cannot be admonished concerning the nullity of the matrimony;

d. if many marriages are to be convalidated which cannot be convalidated by another way.

¹ Cn. 1141.

667. On procuring sanation in the root. If sanation is to be sought because of an occult impediment, these things are to be observed:

1. The sanation must be sought occultly and committed to execution occultly.

2. The confessor can procure it, if the impediment was detected in confession.

3. Recourse must be had immediately to the Holy See, and indeed to the Penitentiary, not to the bishop; although the letters (closed on account of the seal) can be directed through the bishop to the Holy See.

4. In the petition: a. the case must be accurately described, and in particular it must be expressed whether consent was present from the beginning and endures in each party, whether the spouses were in good faith; b. the mode of convalidation through sanation in the root must be sought, and the causes of dispensation must be indicated, especially the causes which demand sanation in the root; c. at the end the name of the confessor must be added, with the diocese and the place where he dwells, so that the rescript can be directed to him.

5. The execution of the dispensation, or the application of the sanation, is not properly required, nor in fact is any made, if each spouse is ignorant of the impediment. But if one party knows the impediment and is rightly disposed, the application is usually made in sacramental confession (but it could also be done outside confession), after absolution from sins and before the prayer Passio. For the rest, the rescript must be accurately observed.

Although no formula is necessary in executing the sanation of matrimony in the root, nevertheless this or a similar one is suitably employed: "By the apostolic authority granted to me, I heal in the 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," etc.

6. If an impediment previously occult afterward becomes public, sanation in the root for the external forum (unless it was also granted for this forum) avails nothing; therefore a new one must then be sought.

Question Eleven.. On the Dissolution of Matrimony.

A twofold dissolution of matrimony, or separation of spouses, is distinguished: the one as to the bond (full), the other, with the bond remaining, as to cohabitation or as to table and bed (imperfect). The latter can be done either by mutual consent of the spouses or from a cause of one party, from which there is granted to the other party the right of departing. Each can be either perpetual or temporary. Concerning the dissolution of matrimony as to the bond through the Pauline privilege, through religious profession, and through dispensation of the supreme pontiff, it was said above (n. 496 ff.); concerning dissolution as to cohabitation, we must now treat.¹

Article One.. On Separation from Mutual Consent.

Spouses are bound to preserve an undivided association of life, unless a just cause excuses them.² The just causes of separation are those by which it happens that they can depart from one another licitly, whether perpetually or temporarily.

¹ In the old law separation of spouses is called divorce (divortium, from divertere), and indeed imperfect divorce, so that it may be distinguished from perfect divorce, which signifies the dissolution of matrimony even as to the bond. The new Code does not use this term.

² Cn. 1128.

668. Perpetual separation. 1. In a twofold case spouses can dissolve the association of life in perpetuity, if either spouse intends to enter religion or the man intends to receive sacred orders, since the Lord says: "Everyone who shall have left wife ... for my name's sake shall receive a hundredfold and shall possess eternal life."¹

2. That a spouse may enter religion or receive sacred orders, these conditions are required:

a. That the consent of the other spouse be present.

Religious profession is invalid not only if it is emitted by one spouse against the will of the other, but also if it is emitted by one spouse without the consent of the other. The spouse who has professed invalidly is bound to return to the other if the latter wills it. The sacred order which is received by a man against the will of his wife is indeed not invalid, but the man is bound to return to the wife if he is required by her.²

b. That dispensation of the Holy See be obtained. In the new law a state contrary to matrimony cannot be assumed without dispensation of the Holy See. For men having wives are simply impeded from receiving sacred orders;³ and spouses during matrimony cannot be validly admitted to the novitiate.⁴

¹ Matt. 19:29.

² Cf. Ferraris, Bibliotheca, word Coniux, n. 15 ff.; Ballerini-Palmieri V, n. 514.

³ Cn. 987.

⁴ Cn. 542.

669. Temporary separation. Spouses can separate for a time both on account of a supernatural cause, namely a greater perfection of spiritual life, and on account of a natural cause, provided it is honorable and truly grave, e.g. on account of business, studies, duties, and other things of this kind.

a. To this supernatural separation spouses can consent even with a vow of continence added; once this has been emitted, they ought to be separated from bed in order to exclude dangers. Because of these dangers separation is not to be permitted except for a time (in a novena, in preparation for feasts of the Lord or of the Blessed Virgin, in the time of Advent, in the time of Lent); therefore the Apostle adds: "And return together again, lest Satan tempt you because of your incontinence."¹

b. Since on account of long separation each spouse is exposed to great dangers, they are to be admonished not to separate except from a truly grave cause, and that the husband, as far as can be done, have his wife with him.

¹ 1 Cor. 7:5.

I. Notion. "Sanation in the root of a marriage is the convalidation of the same marriage, carrying with it, besides the dispensation or cessation of the impediment, dispensation from the law concerning renewal of consent, and retrotraction by fiction of law, concerning canonical effects, into the past" (canon 1138, § 1). Therefore sanation in the root involves three things:

1. It removes the impediment, unless it has already ceased.

2. It dispenses from the law of renewing consent, or permits the marriage to be convalidated by force of the prior consent, that is, although neither party renews consent.¹ The convalidation, however, takes place from the moment of the concession of the grace (canon 1138, § 2).

3. It effects that the canonical effects, especially the legitimacy of offspring, belong to the sanated marriage not only now, but by fiction of law are so attributed to it as if the marriage had already been valid in the past; indeed, the retrotraction is understood to have been made to the beginning of the marriage, unless something else is expressly provided (canon 1138, § 2).

Therefore sanation in the root differs from simple convalidation: 1° because the former requires renewal of consent from neither party, while the latter requires that consent be renewed at least by one party; 2° the former so attributes canonical effects to the sanated marriage as if they had already previously been annexed to it, while the latter lacks this efficacy.

Note. Dispensation from the law concerning renewal of consent can also be granted with only one party or with both parties unaware (canon 1138, § 3).

II. Possibility of sanation in the root. Any marriage entered with the naturally sufficient consent of both parties, but juridically inefficacious on account of a diriment impediment of ecclesiastical law or on account of defect of legitimate form, can be sanated in the root, provided consent perseveres (canon 1139, § 1). The same must be said of a marriage invalid on account of a diriment impediment of natural or divine law (n. 830). But a marriage contracted with an impediment of natural or divine law, even if afterward the impediment has ceased, the Church does not sanate in the root, not even from the moment of the cessation of the impediment (canon 1138, § 2).

III. Requisites that a marriage can be sanated in the root. For validity it is required:

1. That each party furnished consent and that it was truly matrimonial consent (canon 1140, § 1). Therefore merely fornicary consent does not suffice, nor civil marriage if it was entered as a mere civil ceremony, but not as marriage. But if consent indeed was lacking from the beginning, but afterward was furnished, sanation can be granted from the moment of the consent furnished (canon 1140, § 2).

2. That each party persevere in consent, or that neither party has revoked it (canon 1140, § 1). But that one or both parties would revoke consent if they knew the nullity of the marriage is not yet revocation; indeed, not even separation from bed and board necessarily involves revocation.²

IV. Subject of the power of sanating in the root. Sanation in the root can be granted only by the Apostolic See (canon 1141). The Apostolic See, however, grants it through the Holy Office, or the Congregation of the Discipline of the Sacraments, or through the Sacred Penitentiary, according as the case bears (n. 803). Nevertheless special indults also are customarily granted to others;³ but the power of dispensing in some impediment does not import the power of sanating in the root.

V. Petition for sanation in the root. It is to be sought if, on the one hand, it seems that the convalidation of some marriage must altogether be provided for, but on the other hand one must abstain from simple convalidation. Therefore it should be sought: 1° if in some place many marriages have been entered invalidly, so that renewal of consent would be liable to many inconveniences; 2° if the things required for simple convalidation are foreseen to be lacking, for instance if the party who, according to the laws of simple convalidation, is bound to renew consent or to renew it in legitimate form refuses to perform this, provided the other party is well disposed.

If each party is in good faith, and neither can be warned without inconvenience, the petition for sanation can be omitted and the parties can be left in good faith; although, if the nullity of the marriage came from the fault of others, for example of the pastor or Ordinary, the Church easily grants sanation, so that then it is expedient to seek it (cf. canon 1138, § 3).

Note. Concerning the drafting of a petition for sanation in the root, see n. 822. For convenience there follow:

Forms Of Petitions.

I.

For The External Forum.

Most Blessed Father.

Peter N., of the diocese of N., and Anna N., my parishioner, in good faith entered marriage in the form prescribed by law. Afterward the public impediment of consanguinity in the third degree of the collateral line was detected and became known to both parties. The consent of each endures. But since the man refuses to renew consent in the form prescribed by law, the woman humbly requests sanation in the root. (If offspring has been born or conceived, let there be added: and the legitimation of the offspring received.)

And God...

N. N., pastor at... Diocese...

II.

For The Internal Forum.

Most Blessed Father.

Caius and Caia had contracted marriage in good faith in the form prescribed by law. Afterward, however, in the internal forum an occult impediment became known, contracted from adultery and from a promise of future marriage mutually made to each other during the marriage by which one or the other, or both, parties were formerly bound. Caia fears that Caius, who is ignorant of the impediment, would refuse to renew consent even privately and secretly. Hence she humbly petitions that Your Holiness would wish to grant sanation in the root of the present marriage and to direct the response to me, the undersigned confessor. (If offspring has been born or conceived, let there be added after the word "marriage": and the legitimation of the offspring received.)

And God...

¹ Therefore it heals the root, that is, consent vitiated from the beginning or inefficacious because of an impediment.

² Some ask whether consent given by one in possession of reason perseveres after the consenting person has fallen into perpetual insanity. Moreover, it seems it must be denied, because consent seems to fail in a person of this kind, as in a dead person (cf. canon 1089, § 3).

³ Cf. Form II, minor faculties of the Sacred Congregation of Propaganda Fide, n. 15 (Vermeersch, Commentarius, n. 93).

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.

— Notion. "Sanation in the root of a marriage is the convalidation of the same, carrying with it, besides dispensation from or cessation of the impediment, dispensation from the law concerning renewing consent, and retrotraction, by a fiction of law, concerning canonical effects, to the past" (c. 1138, §1). Therefore, sanation in the root:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

878. Notion. A radical sanation is a dispensation granted by the Supreme Pontiff whereby a matrimony hitherto invalid is rendered valid, and indeed, as regards canonical effects, not from the time the dispensation was granted but, through a fiction of law, from the beginning, and consequently all the canonical effects which had followed from the law invalidating the matrimony are removed.³⁰⁵ More briefly it is said: a radical sanation renders a matrimony hitherto invalid equally valid, as regards canonical effects, as if no diriment impediment had been present from the beginning. Wherefore, after a radical sanation, legitimation of the offspring born is no longer necessary; for through the fiction of law all this offspring is judged to have been born in legitimate matrimony.

From the things explained, the distinction between a simple dispensation and a radical sanation is readily understood. The former does not make the matrimony valid except by means of a renewal of consent; the latter does not require new consent, but renders legitimate the consent placed at the beginning.³⁰⁶ But if a renewal of consent is nevertheless sometimes required even in a radical sanation, this is accidental, namely, because one party was in bad faith from the beginning and perhaps never gave sincere consent. Another difference between these two dispensations is this: as regards canonical effects, a radical sanation renders the matrimony valid ex tunc, that is, from the beginning; a simple dispensation renders the matrimony valid ex nunc, that is, from the moment the dispensation was granted. But as regards the character of the sacrament and the other moral effects, both a radical sanation and a simple dispensation render the matrimony valid ex nunc.

³⁰⁵ Cf. Code of Canon Law, can. 1138.

³⁰⁶ Cf. Benedict XIV, De syn. dioec., bk. 13, c. 21, n. 7.

879. The proper nature of a radical sanation is explained in diverse ways. There are chiefly two explanations.

The first explanation, proposed by Perrone,³⁰⁷ Müllendorf,³⁰⁸ Riganti, and others, holds that through a radical sanation the matrimony becomes perfectly valid from the beginning, even under the character of a sacrament, and consequently with all effects, both moral and juridical. In order to explain this marvelous efficacy of a radical sanation, however, these authors assert that ecclesiastical legislation concerning the diriment impediments of matrimony is not wholly absolute but conditional. For example, the impediment of consanguinity ordinarily invalidates all marriages contracted between blood relatives; but if God through the so-called middle knowledge foresees that His Vicar on earth will sanate some particular matrimony contracted between blood relatives, He then holds that matrimony to be valid from the beginning and grants all sacramental graces.

This explanation was indeed set forth with the best intention and some ingenuity, but it entirely lacks every real foundation and brings no small inconveniences with it. For nowhere is even the least trace of this asserted conditional legislation found. Moreover, according to this explanation a radical sanation would be nothing other than a declaration by the Supreme Pontiff that the diriment impediments did not exist at the time of the celebration of this or that matrimony; which is certainly false.

The second and most common explanation asserts that through a radical sanation a matrimony which truly was null from the beginning is convalidated, so that it now becomes valid under the character of a sacrament, but all juridical effects are granted to the matrimony thus convalidated just as if it had been valid from the beginning. This explanation is also employed in the Decree Cum super of Benedict XIV, September 27, 1755: "Through it, namely, a radical sanation, it is not brought about that a matrimony contracted invalidly was not so contracted; rather, the effects which were produced because of the nullity of such a matrimony before the dispensation was granted, and even in the very act of contracting the matrimony, are removed from the midst." The same is established by the Code of Canon Law, can. 1138, § 2: "The convalidation of the matrimony occurs from the moment of the grant of the favor; the retroaction, however, as regards canonical effects, is understood to have been made to the beginning of the matrimony, unless something else is expressly provided." Therefore, since the pseudo-spouses receive the sacrament of matrimony at the moment of the radical sanation, let the confessor take care, according to his powers, that they are then in the state of sanctifying grace, lest they receive unworthily a sacrament of the living.

As regards the history of radical sanation, several things are still uncertain. Neither in the Decretals nor in the Summa of St. Raymond is mention made of radical sanation. Certain authors see its first traces in dispensations granted by Boniface VIII, who declared valid the marriages between Maria and Sanchez IV, the already deceased king of Castile, and between Ildephonsus, king of Portugal, and the countess of Poland, notwithstanding the diriment impediments.³⁰⁹ Benedict XIV clearly set forth the doctrine on radical sanation. At the time of the first French Revolution very many marriages were sanated in their root. Today a radical sanation is wont to be granted when a simple dispensation with renewal of consent is morally impossible.

The power of sanating a matrimony in its root belongs to the Supreme Pontiff alone,³¹⁰ who sometimes habitually delegates it to bishops residing outside Europe, but quite rarely to bishops of Europe.

Certain authors³¹¹ distinguish a perfect and an imperfect radical sanation. The former is had when, without a renewal of consent, the matrimony is convalidated with all juridical effects, and especially with the legitimation of all the offspring. The latter is had a) if renewal of consent is required on the part of one putative spouse; b) if, because of the death or insanity of one spouse, the matrimony indeed is not convalidated, but nevertheless all juridical effects are granted to it. This distinction is not of great utility. At least the latter mode would better not be called a radical sanation of the matrimony, because then it is altogether impossible to sanate the matrimony itself, as is self-evident. This mode is in reality nothing other than legitimation of offspring, which certainly can be accomplished without convalidation of the matrimony.

³⁰⁷ De matrim. II, 161 ff.

³⁰⁸ Pastor bonus XXII (1909), 412 ff.

³⁰⁹ Cf. Scherer, Kirchenr. II, 454.

³¹⁰ Code of Canon Law, can. 1141. A radical sanation for the internal forum must be sought from the Sacred Penitentiary, for the external forum from the Sacred Congregation of the Sacraments; but if it is a question of the impediment of disparity of worship, from the Holy Office, as will be said below.

³¹¹ Cf. Wernz-Vidal, Ius can. V, n. 659.

880. Four conditions required for a radical sanation.

1. That the diriment impediment in question not be of natural or divine law, but of ecclesiastical law, and indeed one of those from which the Church is accustomed to dispense.³¹²

Hence, a radical sanation is not granted if there stands in the way, for example, the impediment of error, the bond, or even lawful affinity in the direct line, the order of the priesthood, etc. Likewise, a sanation was denied in the following case: from a certain fornicarious union or concubinage, two children had been born; afterward the non-Catholic man was rendered perfectly impotent by a surgical operation; later he celebrated a civil matrimony with his concubine. A radical sanation was now sought. The Sacred Congregation of the Inquisition responded on March 8, 1900: "In the case set forth, a radical sanation cannot be granted." Why? In the first union an impediment of natural law stood in the way, namely, the defect of true matrimonial consent; in the second union or civil matrimony true consent was indeed present, but another impediment pertaining to natural law stood in the way, namely, physical impotence.

Similarly, a matrimony to which an impediment of divine law, for example, the bond, stands opposed cannot be sanated. Wherefore, if on April 25, 1890 the Sacred Penitentiary seems to have granted a radical sanation of a certain matrimony to which the impediment of the bond stood opposed from the beginning, but which afterward ceased through the death of the other party, this dispensation is by no means a radical sanation properly so called. For a) the matrimony was not convalidated from the beginning, but from the death of the other party; b) the legitimation of adulterine offspring was expressly denied. And indeed, if this dispensation had been a true and proper radical sanation, there would have been an open contradiction, namely, the Church would have admitted true polyandry. For the woman in question was living in a true matrimony with her first husband and at the same time, through a fiction of law, would be judged to have lived in a true matrimony with the adulterer. Therefore, the Code of Canon Law, can. 1139, establishes: "A matrimony contracted with an impediment of natural or divine law, even if the impediment afterward ceased, is not sanated in its root by the Church, not even from the moment the impediment ceased." In this case, therefore, the matrimony cannot be convalidated otherwise than by a renewal of matrimonial consent, as was explained above, § 1.

2. That true matrimonial affection or consent was present.

For if the contracting parties intended nothing other than mere concubinage, matrimonial consent itself was lacking, which the Church can supply by no dispensation. In other words: in order that a radical sanation be possible, it is required that the matrimonial contract would have been valid if an invalidating ecclesiastical law had not stood in the way. Therefore, a radical sanation is nothing other than a sanation of the root of the matrimony; moreover, the root of matrimony is matrimonial consent, which, if naturally valid consent was present, can be sanated; but if it was not present, neither can it be sanated, as is self-evident. For that which does not exist cannot be sanated. If only one of the putative spouses had true matrimonial affection, while the other intended nothing but the so-called "free union," the matrimony cannot even be convalidated unless the other afterward gives true matrimonial consent. But then this convalidation is not a radical sanation properly so called, as is evident from what was said above.

³¹² Code of Canon Law, can. 1139, § 2.

881. 3. That the matrimonial consent given at the beginning virtually endure at the moment of the sanation and not have been truly and efficaciously revoked by either party.³¹³

Thus teach all those who do not admit that unfounded explanation of the nature of radical sanation proposed by Perrone, Müllendorf, and others, which was already refuted above. The reason is obvious: for both the capacity and the consent of the persons about to marry must be present for the validity of matrimony. Although the incapacity of the persons about to marry introduced by ecclesiastical law can be removed through a dispensation, their consent can by no means be supplied if it was truly revoked or virtually no longer perseveres when the incapacity is removed. The style of the Curia also expressly requires this endurance of the consent of each party; for in Rescripts the clause is wont to be appended: "insofar as each party perseveres in present consent"; likewise the Code of Canon Law, can. 1139, § 1. In practice, matrimonial consent is presumed to persevere unless the contrary is manifestly established. In particular, a revocation of consent is not present:

a) if the party ignorant of the impediment would be ready to dissolve the matrimony because of domestic quarrels or other reasons;

b) if the party ignorant of the impediment has already sought divorce as regards bed and habitation. The reason for these two cases is that the question is not what the ignorant party would do if he knew the impediment, but what he in fact does. Moreover, in fact it is not established that the party has retracted the matrimonial consent previously given;

c) if both spouses have indeed known the nullity of the matrimony for some time but nevertheless continue to live together maritally.³¹⁴

In no way, however, can consent be said virtually to remain if either spouse is dead or has fallen into complete insanity; wherefore, in these cases a true radical sanation properly so called cannot be granted, although offspring received can be declared legitimate.

4. That there be a grave and urgent cause.

For a radical sanation is an extraordinary dispensation which is not wont to be granted without a grave and urgent cause. Hence, a bishop or other delegate who granted a radical sanation without a grave and urgent cause would act not only illicitly but also invalidly. Grave causes of this kind are:

a) if a diriment impediment, for example, crime, which is known to one party cannot be manifested to the other party without great inconvenience;

b) if one party cannot be induced to renew consent, although that party wishes to remain in the matrimony;

c) if both spouses are in good faith but, because of grave reasons, cannot be admonished concerning the nullity of the matrimony, nor is it advantageous to leave them in good faith;

d) if many marriages are null which cannot be convalidated otherwise than through a radical sanation. For this reason Pius X, in the Constitution Provida, sanated in their root all mixed and non-Catholic marriages in Germany which had been invalidly contracted before April 15, 1906, because of a defect of the Tridentine form, provided that no other diriment impediment stood in the way and that the mutual consent of the spouses had persevered up to the stated day.

³¹³ Code of Canon Law, cann. 1139 and 1140.

³¹⁴ Cf. Wernz-Vidal, Ius can. V, n. 666, note 34.

882. Petition and execution of a radical sanation. Since a radical sanation can be obtained and applied even without the knowledge of the pseudo-spouses,³¹⁵ anyone can seek it. Ordinarily, however, it belongs to the parish priest or confessor to seek and execute this sanation. In the petition all those things which pertain to the nature of the impediment must be explained, just as is done in seeking a simple dispensation. Then the reasons, from the four recounted above, must be adduced why not a simple dispensation but a radical sanation is sought. If it is a question of an occult impediment, as more commonly happens, the petition is to be directed to the Sacred Penitentiary. But if a public impediment is present, it is preferable to seek the sanation, through the episcopal curia, from the Sacred Congregation of the Sacraments, or, if it is a question of an invalid matrimony of mixed religion or disparity of worship, from the Holy Office.

In executing the sanation obtained, diligent attention must be given to the clauses placed in the Rescript. In the confessional, for the fulmination of the sanation, this or a similar form can be employed: "By apostolic authority specially committed to me, I sanate in its root your matrimony with N., invalidly contracted because of the existence of such an impediment, for example, crime, affinity, etc.; wherefore the offspring received or to be received is legitimate. In the name of the Father and of the Son and of the Holy Spirit. Amen." Because the putative spouses ought to be in the state of grace when the sanation is committed to execution, for they then receive the sacrament of matrimony, this execution must be made after sacramental absolution, insofar as this is possible.

³¹⁵ Cf. Code of Canon Law, can. 1138, § 3.

883. Corollary. From the things said thus far, it is useful to gather briefly the effects of a radical sanation.

1. At the moment when a radical sanation is granted, the matrimonial contract becomes a true sacrament of the New Law, unless, however, one spouse is a non-baptized unbeliever. The matrimonial contract by no means becomes a sacrament from its first beginning; and therefore formal sins which perhaps were committed by the pseudo-spouses before the sanation through intercourse exercised in bad faith are not removed nor rendered not to have been committed.

2. All the effects of ecclesiastical law are attributed to the matrimony thus sanated in the same manner as if it had been valid from the beginning. Hence, the most perfect legitimation of the offspring born is granted. For the offspring is regarded in the same manner as if born in a legitimate matrimony. Therefore, offspring thus legitimated can receive not only sacred orders but also ecclesiastical dignities. It is indeed exceedingly fitting that such legitimated offspring should also be regarded as legitimate before civil law, with all the rights of legitimate children; but a radical sanation does not of itself yet confer such civil rights. Hence, for example, if the civil law of some region excludes offspring of this kind from hereditary succession, it is not permissible to employ occult compensation.³¹⁶

³¹⁶ Cf. Wernz-Vidal, Ius can. V, n. 671, note 44.

884. Scholion. On illegitimate children. Since in the course of the treatise on matrimony discussion often occurs concerning the legitimation of offspring, legitimate and illegitimate children must be treated briefly here. St. Thomas³¹⁷ teaches: "The state of children is fourfold: for some are natural and legitimate, such as those born from true and legitimate matrimony; some are natural and not legitimate, such as children born from simple fornication; some are legitimate and not natural, such as adopted children; some are neither legitimate nor natural, such as spurious children born from adultery or defloration."

In the ecclesiastical forum, according to the discipline now in force, the following are held to be legitimate children:

All who are conceived or at least born from a valid or putative matrimony. Children begotten after solemn profession or the reception of sacred order are excepted, namely, children of those who indeed contracted a valid matrimony but afterward emitted a solemn vow of chastity or received sacred order and nevertheless begot children.³¹⁸ Children who were born at least six months after the day the matrimony was celebrated, or within ten months from the day conjugal life was dissolved, are presumed legitimate.³¹⁹ This presumption, however, can be overcome by proof of the truth.

All other children are illegitimate and are wont to be distinguished as natural and spurious. Natural children are those who indeed were begotten outside matrimony but by persons between whom a valid matrimony could have existed at the time of conception, pregnancy, or birth; or more briefly: natural children are children born from simple fornication. Spurious children are those whose parents, at the time of conception or birth, were incapable of contracting matrimony because of a diriment impediment existing between them. Spurious children are wont to be subdivided into: a) adulterine, who were begotten from adultery; b) sacrilegious, either or both of whose parents were bound by a solemn or solemnized vow of chastity; c) incestuous, whose parents were blood relatives or relatives by affinity in the collateral line; d) nefarious, who were begotten by blood relatives or relatives by affinity in the direct line; e) those who were begotten by persons held by the impediment of age or disparity of worship.^319a

The legitimation of illegitimate children can be obtained in three ways:

1. Through a subsequent matrimony, whether true or putative, newly contracted or convalidated, natural children are legitimated, but not spurious children.³²⁰ Such legitimated natural children, as regards canonical effects, are in all things made equal to legitimate children unless something else was expressly provided,³²¹ for example, as regards the cardinalate, can. 232, § 2, and the episcopate, can. 331, § 1.

2. Through solemn profession in religious orders, or through simple profession in certain religious institutes having a special privilege,³²² there is obtained by that very fact the legitimation of both natural and spurious children, but only for receiving sacred orders, not for accepting dignities.³²³

3. Through a dispensation granted from a diriment impediment, whether by ordinary power or by delegated power through a general indult, for example, one granted to all priests who dispense in danger of death or in another urgent case, but not through a Rescript in particular cases, the legitimation of offspring is also granted by that very fact, except, however, adulterine and sacrilegious offspring.³²⁴

4. Through a Rescript of the Supreme Pontiff, all illegitimate children, even spurious children, can be legitimated as regards canonical effects;³²⁵ but whether such perfect legitimation according to all canonical effects was in fact granted must be seen from the Rescript of the Supreme Pontiff itself.

The legitimation obtained must be noted in the baptismal register.

³¹⁷ Suppl., q. 68, a. 1.

³¹⁸ Code of Canon Law, can. 1114; c. 2, X, 4, 17.

³¹⁹ Code of Canon Law, can. 1115, § 2.

^319a Pontifical Commission, December 6, 1930 (Acta Apost. Sed. XXIII, 25).

³²⁰ c. 3, X, 4, 17; Benedict XIV, Constitution Redditae, December 5, 1744; Code of Canon Law, can. 1116.

³²¹ Code of Canon Law, can. 1117; Sixtus V, Constitution Postquam, December 3, 1586.

³²² Gregory XIII, Constitution Ascendente Domino, May 25, 1584.

³²³ c. 1, X, 1, 17; Code of Canon Law, can. 984, n. 1.

³²⁴ Code of Canon Law, can. 1051.

³²⁵ Cf. St. Thomas, Suppl., q. 68, a. 3, and Benedict XIV, loc. cit.

252. • I. Notion.

a) "Sanation in the root of matrimony is its convalidation, bringing with it, besides dispensation from or cessation of the impediment, dispensation from the law concerning renewing consent, and retrotraction, through a fiction of law, concerning canonical effects, to the past." (Can. 1138, § 1.)

b) "Convalidation is made from the moment of the concession of the grace; retrotraction, however, is understood to have been made to the beginning of the matrimony, unless something else is expressly provided." (Ibid., § 2.)

1. Matrimony begins to be valid "from the moment of the concession of the grace," i.e.: if sanation is given in gracious form, as soon as the rescript is signed; but if in commissory form, as soon as it is committed to execution.

2. But the canonical effects are retrotracted by a fiction of law to the beginning of the matrimony, as if the matrimony had been valid from the beginning. Thus children born from such a matrimony are held as legitimate.

3. Sometimes retrotraction is had not to the beginning of the matrimony, but to some intermediate time, especially in a partial sanation which regards only offspring to be legitimated.

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

1. Even when one party is unwilling, sanation in the root can be conceded and sometimes is conceded.

2. Likewise when either or each party is deceased, if there is question of partial sanation.

3. Even when each party is unwilling, sanation can be conceded. In practice the Supreme Pontiff sometimes does this in a particular case, only if there is question of partial sanation with respect to canonical effects, e.g., for the good of the offspring. But general sanations sometimes conceded by the Pope touch all matrimonies, whether the spouses wish or do not wish their matrimony to be convalidated, provided the conditions required for sanation in the root are verified.¹

¹ Capello, cited work, n. 852.

253. • II. Conditions necessary for obtaining sanation in the root.

"Any matrimony entered into with the consent of each party naturally sufficient, but juridically inefficacious on account of a diriment impediment of ecclesiastical law or on account of defect of legitimate form, can be sanated in the root, provided consent perseveres." (Can. 1139, § 1.)

Therefore that canon requires three conditions so that sanation in the root can validly be conceded.

a) First, it is necessary that each party gave true and naturally, or of itself, sufficient consent, and did not revoke it.

1. It is altogether impossible for the Church to sanate a matrimony in which the very root to be sanated is wholly lacking, which is matrimonial consent. For without consent no matrimony can be conceived. (Can. 1140, § 1.)

2. Civil matrimony, if marital consent naturally sufficient truly was present, nothing prevents from being sanated in the root.

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

b) It is necessary that the cause of nullity of the matrimony be either an impediment of ecclesiastical law or defect of legitimate form.

1. But if there is question of an impediment of natural or divine law, the Church cannot sanate that matrimony in the root from the beginning of the matrimony. For neither can the Church by a fiction of law hold as valid a matrimony to which there stands opposed an impediment of natural or positive-divine law, which surpasses her power of dispensing.²

² Capello, cited work, n. 854.

2. From the time when an impediment of divine or natural law has already ceased, the Church indeed could sanate the matrimony. But in fact she does not concede even that partial sanation to such a matrimony.

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

c) Besides, a grave and urgent cause is required.

Such a cause is present when otherwise the matrimony cannot be convalidated in any way, or only with danger of grave harm.

254. • III. The authority competent to concede sanation in the root.

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

a) The Supreme Pontiff ordinarily uses the organ of the Sacred Congregations to concede sanation in the root, or, if there is question of the internal forum, the Sacred Penitentiary, as was said for dispensations from impediments. Cf. above n. 182, the things said concerning the respective competence of the diverse Congregations and of the Sacred Penitentiary.

b) By indult of the S. C. de Prop. Fide, Ordinaries in places of the missions can sanate in the root matrimonies which are null on account of an impediment upon which they can dispense.

Moreover, faculty is conceded to them to sanate in the root mixed matrimonies contracted before a non-Catholic minister or civil magistrate.

c) Legates of the Holy See and local Ordinaries obtain faculties of sanating matrimonies in the root, circumscribed by a certain ambit.

255. • IV. Concerning the petition of sanation in the root.

a) According to the diversity of the case, let the petition be directed to the Holy Office, or the S. C. of the Sacraments, or the S. C. for the Eastern Churches, if there is question of the external forum, through the episcopal curia, or to the Ordinary; or to the Sacred Penitentiary, for the internal forum. Cf. the things said at nn. 198-203.

b) In the supplicatory libellus let those things be indicated which we mentioned above at nn. 204-206.

256. • V. Concerning execution.

Recall the things said in Chapter VI, Article V.

Let the parish priest or confessor take care insofar as possible that, at the moment of execution of the rescript of sanation, the spouses be in the state of grace, because at that moment they contract matrimony and receive the sacrament.³

³ Marc., cited work, n. 2087.

933. Sanation in the root is so called because it heals from nullity the root of matrimony, i.e., consent truly but nullly furnished, so that it renders the matrimony valid and takes away the effect of nullity. Namely, the consent, on account of some obstacle, was invalid from the beginning and endures invalid; but when the law invalidating the consent ceases or is relaxed by dispensation, the Church heals the consent invalid from the beginning and at the same time dispenses from the law of renewing consent; moreover, by a fiction of law she draws back the sanation to the moment of the consent furnished, so that the matrimony as to juridical effects is held as if it had been valid from the beginning and the impediment had never existed.

Hence can. 1138, § 1: "sanation in the root of matrimony is the convalidation of the same, carrying with it, besides the dispensation or cessation of the impediment, dispensation from the law of renewing consent, and retrotraction, by fiction of law, concerning canonical effects, to the past."

Therefore: A. Sanation in the root has two effects: the convalidation of the matrimony and retrotraction: "convalidation is made from the moment of the concession of the grace; but retrotraction is understood to be made to the beginning of the matrimony, unless something else is expressly provided" (can. 1138, § 2).

a) The matrimony begins to be valid, not indeed from the moment of celebration, as if for the time in which it was invalid it were now rendered valid, which is impossible; but from the moment of the concession of the grace, i.e., if the sanation is given in gracious form, as soon as the rescript is signed; but if in commissory form, as soon as it is committed to execution.

b) But the canonical effects are drawn back by fiction of law to the very beginning of the matrimony, as if it had always been valid; whence children born from such a matrimony are held as legitimate from the beginning of the matrimony.

c) Sometimes, however, retrotraction is not made to the beginning of the matrimony but to some intermediate time, especially in partial sanation which regards only offspring to be legitimated.

B. The matrimony is healed without renewal of consent; moreover, "dispensation from the law of renewing consent can also be granted with one party only or both parties unaware" (can. 1138, § 3), which is not repugnant, because a dispensation is the relaxation of an ecclesiastical law in a particular case; but a legislator can exempt someone from the law although unaware, indeed unwilling.

Nevertheless a) rarely does she grant sanation when one party is unwilling; b) she does, however, grant partial sanation, as to juridical effects, namely legitimation of offspring, when either or both parties have died, indeed even when both were unwilling; c) sanation properly so called or full sanation she does not grant in a particular case when both parties are unwilling, but general sanations have sometimes been granted for all matrimonies, even if the spouses are unwilling, provided the required conditions are verified.

934. Principle. Sanation in the root is not granted unless certain conditions are given. - According to can. 1139, § 1: "Any matrimony entered with the consent of both parties naturally sufficient, but juridically inefficacious on account of a diriment impediment of ecclesiastical law or on account of defect of legitimate form, can be sanated in the root, provided consent perseveres."

Therefore there is required:

1° Naturally sufficient consent of each party, so that each party has furnished true consent sufficient of itself. For the root of matrimony is marital consent, without which matrimony cannot even be conceived; and if this consent was present, it is sanable, but if it was not present, it cannot be healed.

Hence can. 1140, § 1: "if consent is lacking in one or both parties, matrimony cannot be sanated in the root...; but if consent was indeed lacking from the beginning, but afterward was furnished, sanation can be granted from the moment of the consent furnished." Hence civil matrimony also can be sanated, provided true matrimonial consent was present and not only the intention of entering an illicit union, but scandal must be absent.

2° An ecclesiastical invalidating law which rendered the consent juridically inefficacious or invalid, whether on account of a diriment impediment or on account of defect of the legitimate juridical form. If an impediment of natural or divine law is present, the Church cannot heal that matrimony from the beginning of the matrimony, because she cannot hold as valid a contract to which there stands in the way an impediment from which she herself cannot dispense; from the time when such an impediment has ceased, perhaps she can heal it, but in fact she does not, at least regularly.

Whence can. 1139, § 2: "But matrimony contracted with an impediment of natural or divine law, even if afterward the impediment has ceased, the Church does not sanate in the root, not even from the moment of the cessation of the impediment."

3° Persevering consent not revoked. For the validity of matrimony, both the capacity and the consent of those about to marry must stand together. By dispensation, indeed, the incapacity introduced by ecclesiastical law can be removed; but consent which, if it has been revoked, no longer perseveres when the incapacity is removed, cannot be supplied. Therefore it is altogether required that consent has not been revoked.

Hence can. 1140, § 1: "matrimony cannot be sanated in the root, whether consent was lacking from the beginning, or, having been furnished from the beginning, was afterward revoked."

Nevertheless consent is presumed to persevere unless the contrary is established; but in no way can it be judged to remain if either spouse has died or has fallen into perfect insanity, and therefore in these cases sanation in the root properly so called cannot be granted, although offspring begotten can be declared legitimate.

4° In addition, a grave and urgent cause. For sanation in the root is an extraordinary dispensation, which is not accustomed to be granted without a grave and urgent cause; indeed a bishop or another delegate who did this would act invalidly.

A grave cause can be: a) if a diriment impediment known to one party cannot be manifested to the other without great inconvenience; b) if the other party cannot be brought to renewal of consent, although willing to remain in the matrimony; c) if both spouses are in good faith, but for grave reasons cannot be admonished concerning the nullity of the matrimony.

935. Observations. - 1. "Sanation in the root can be granted only by the Apostolic See," can. 1141. It is unknown when sanation in the root began to be used; certainly, however, it is in use from the time of Boniface VIII. The Supreme Pontiff ordinarily uses the S. Congregation of the Holy Office, the S. Congregation concerning the Sacraments, or the S. Penitentiary, according to the diversity of cases; whence the petition is to be directed to them. Sometimes, however, the faculty of sanating certain marriages in determined circumstances is delegated to Ordinaries of places.

2. Sanation can be sought either by the other parties, or by either of them, or by a third person, for example the Ordinary or confessor, even with the parties unaware. Nevertheless it is not licit to have recourse to it except in the case in which simple convalidation is impossible in practice.

3. In the petition the case must be expressed accurately, especially whether consent was present from the beginning and endures in each party, whether the spouses were in good faith, and what are the causes which seem to demand sanation in the root.

4. Execution is not necessary if the nullity of the matrimony is unknown to the parties and cannot be revealed to them without grave inconvenience.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

¹ Cf. Addenda, p. 1091, n. 21.