Simple Convalidation

V. Convalidation of an invalid profession. Religious profession invalid because of an external impediment does not become valid by subsequent acts, but it is necessary that it be sanated by the Apostolic See, or emitted anew legitimately, once the nullity is known and the impediment has been removed (can. 586, § 1). But if it was invalid because of a merely internal defect of consent, once this has been supplied, it becomes valid, provided consent on the part of the religion has not been revoked (can. 586, § 2).

Three cases of convalidation can be distinguished according to the threefold cause of the nullity of the marriage, namely, on account of a diriment impediment, on account of a defect of consent, and on account of a defect of juridical form.

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

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

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

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

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

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

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

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

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

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

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

Preliminary note. Here belong marriages null on account of defect of discretion, error, fear, fiction, or a condition repugnant to the substance of marriage.

I. Requisites for convalidation. A marriage void 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 (canon 1136, § 1). In the case it is not required that the party who had consented renew consent, because for a contract it suffices that the consent of both parties morally coexist. This obtains if the consent of one perseveres until the other furnishes consent (St. Thomas, Supplement, q. 47, a. 4, ad 2; St. Alphonsus VI, 1114).

II. Form to be observed. From canon 1136, §§ 2 and 3:

1. If the defect of consent was merely internal, it is enough that the party who had not consented consent interiorly.

2. If it was also external, it is necessary also to manifest consent externally, and indeed in this way:

a) If the defect was secret, it suffices to manifest consent privately and secretly, that is, between the parties alone.

b) If the defect was public, consent must be manifested in the form prescribed by law. If in the case the party who did not consent refuses to manifest consent in the form prescribed by law, a dispensation from form should be sought, and scandal should be removed by making known the convalidation of the marriage.

Preliminary note. Here belong, for example, marriages entered merely civilly by those who are bound to ecclesiastical form. Moreover:

A marriage null on account of defect of form, in order that it become valid, must be contracted anew in legitimate form (canon 1137); and indeed, as regards liceity, publicly or occultly, according as the nullity is public or occult.

If the nullity is public, and both parties or one or the other refuses publicly or in the face of the Church to renew consent, it can be permitted by the Ordinary that the marriage be contracted, for example, in the house of the pastor before only the pastor and witnesses. Scandal, however, should be removed by making known the convalidation of the marriage.

If one party refuses to renew consent in legitimate form, a dispensation from form should be sought.

If one party refuses to renew consent, sanation in the root should be sought. In every case, however, scandal, if it is present, should be removed by making known the convalidation of the marriage.

If both parties refuse to renew consent or to renew it in legitimate form, the Church does not grant sanation in the root.

Note. Concerning the drafting of a petition for convalidation of a marriage, see n. 822. For convenience there follow:

Forms Of Petitions.

I.

For The External Forum.

Most Blessed Father.

(Your Most Reverend Excellency).¹

Peter N., of the diocese of N., and Anna N., my parishioner, entered marriage in the form prescribed by law. Afterward the public impediment of affinity in the second degree of the collateral line became known. They humbly ask for a dispensation, so that the invalidly contracted marriage may be convalidated. (If offspring has been born or conceived, let there be added: They also obtain the legitimation of the offspring.)

And God...

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

II.

For The Internal Forum.

Most Eminent and Most Reverend Lord.

Caius and Caia in good faith entered marriage 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.

That the marriage, whose nullity is known to both, or to one or the other, party, may be convalidated, the confessor humbly asks that the impediment be removed.

May Your Eminence deign to direct the response to me, the undersigned confessor.

¹ If the Ordinary is able to dispense.

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).

We suppose that the marriage is invalid either on account of disparity of worship and defect of form, or on account of defect of form alone. Now, so that a marriage of this kind may be convalidated:

I. First, the things to be posited having been posited, a dispensation should be sought either from the diriment impediment of disparity of worship or from the impedient impediment of mixed religion. Then the marriage should be contracted in legitimate form, and indeed, as regards liceity, publicly or occultly, according as the nullity is public or occult.

If the nullity is public and the non-Catholic party refuses publicly to renew consent, the Ordinary can permit the marriage to be contracted before only the pastor and witnesses.

If the non-Catholic party refuses to renew consent in legitimate form, a dispensation from form should be sought.

If the non-Catholic party refuses to renew consent, sanation in the root should be sought if there is hope of obtaining it, according to what is soon to be said.

II. I said that, the things to be posited having been posited, a dispensation from the impediment of disparity of worship or mixed religion is to be sought. For in order that the said dispensation can be obtained, both the cautions must be furnished and moral certainty must be had concerning the fulfillment of the cautions.

But what if either the non-Catholic party refuses to furnish the cautions, or moral certainty is not had concerning the fulfillment of the cautions?

Response. In the case an ordinary dispensation is excluded; and it seems excluded even in danger of death;¹ hence one must recur to sanation in the root if there is hope of obtaining it, that is, if it is morally certain that the non-Catholic party will not impede the Catholic education of all offspring, both born and to be born. For although sanation in the root can be expected even if the non-Catholic party refuses to furnish the cautions,² nevertheless, if the aforesaid moral certainty is lacking, sanation in the root cannot be expected.³

What, therefore, if even that moral certainty is lacking?

Response 1. Outside danger of death, the cause is hopeless.

Response 2. In danger of death, dispensation and sanation in the root alike seem excluded,⁴ but not recourse to epikeia; namely, if the Catholic party promises that he or she will provide according to his or her strength for the Catholic education of all offspring, one should proceed to the convalidation of the marriage, the consent of at least the Catholic party having been renewed (cf. St. Alphonsus VI, 613).

¹ Cf. canons 1043, 1061; likewise the things which we noted on p. 605.

² Holy Office, April 12, 1899 (collection, n. 2042); December 22, 1916 (A.A.S. 1917, p. 13).

³ Holy Office, July 1, 1930 (in Nederlandsche Katholieke Stemmen, 1931, p. 168; 1932, p. 68). Moreover, this is clear from the fact that to the faculties of the Congregation of Propaganda Fide concerning sanation in the root of mixed marriage there is now added the clause: "provided it is morally certain that the non-Catholic party will not impede the Catholic education of all offspring, both born and to be born."

⁴ Besides, concerning sanation in the root, which even in danger of death cannot be granted without a special indult, the opportunity of receiving a timely response will easily be lacking.

The inscription of a convalidated marriage should be made in this way:

I. Convalidation in the external forum should be noted in the customary register of marriages and in the book of the baptized. If the prior marriage has already been inscribed in the usual way, it can either be noted anew with reference to the prior marriage, or all things can be noted in the margin of the prior inscription.

II. Convalidation in the internal forum should be noted in the secret register of the episcopal Chancery, unless the sacramental seal stands in the way. If that stands in the way and the good of the offspring requires inscription, with the license of the penitent or penitents the notation should have place.

If the pastor or confessor detects that some marriage is certainly invalid, one should proceed thus:

I. If both are unaware of the nullity, ordinarily on account of the danger of incontinence or of some other inconvenience they should be left in good faith for a time. Meanwhile, if the impediment has ceased or is dispensable, simple convalidation or sanation in the root should be procured according to the circumstances.

II. If each party is conscious of the nullity, one should proceed thus:

1. If the nullity is occult to others, the spouses must immediately be separated from bed. Meanwhile, if the impediment has ceased or is dispensable, convalidation should be procured as soon as possible. If the impediment is indispensable, recourse should be had to the Ordinary, who should judge what kind of separation seems to be procured.

2. If the nullity is public, the spouses must at once be separated even from cohabitation. Meanwhile, recourse should be had to the Ordinary either for convalidation or for a declaration of nullity, if it is impossible or not expedient to procure convalidation. That the spouses do not wish to be separated for a time does not prevent convalidation from being able to be obtained.

III. If only one party is conscious of the nullity, the other party, if it can be done without grave inconvenience, must be warned, and the spouses must be separated at least from bed; then convalidation should be procured as soon as possible. If the other party cannot be warned without grave inconvenience, the warning can be omitted, but the rendering of the debt must be avoided until convalidation has been procured, for instance by undertaking a journey, by excusing oneself under some pretext.

But what if only the wife knows the nullity, and on the one hand convalidation cannot be obtained in time, even with canon 1045 considered, while on the other hand copula cannot be avoided without very grave inconvenience?

Response. In the case, according to several authors, by epikeia it can be judged that the ecclesiastical impediment has ceased, so that the spouse, by renewing consent either explicitly or by conduct, through copula, can convalidate the marriage and render the debt. Nevertheless, for greater caution, recourse should be had as soon as possible to the competent power (St. Alphonsus VI, 613).

When an Impediment Is Discovered after Marriage.—A diriment impediment or other invalidating defect is sometimes discovered after the celebration of marriage. There are various solutions of this difficulty.

(a) If the marriage can be validated (or made valid), this should be done. The manner of simple validation of marriages null on account of diriment impediment, defective consent or lack of form, is declared in Canons 1133-1137.

(b) If the marriage cannot be validated simply, it may be made valid in certain cases by the special validation known as a sanatio in radice. This supposes that a consent naturally sufficient, but juridically insufficient, was given, and that a renewal of consent cannot be obtained (see Canons 1138-1141).

(c) If marriage cannot be validated in any way (as in the case of an indispensable impediment), the parties should be separated, or permitted to live together as brother and sister, or left in good faith. Thus, if the nullity of the marriage is public, the parties should be separated after a declaration of nullity; if the nullity is secret and unprovable, the parties may be permitted to live together as brother and sister, if they know the marriage is null, but are not exposed to the danger of incontinence; if the parties are in good faith about their marriage and it is foreseen that serious evils would result were they told the truth (such as bad faith, or misfortunes for the children), they may be left as they are.

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.

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.

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.

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

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.

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?

Reply. These are the principal ways assigned by various authors:

I. Way. If the spouse simply says: Our marriage is null because of some impediment; or: My Confessor told me that it is null ..., and therefore let us renew consent.

II. Way. If the spouse says: I did not have true consent when I contracted marriage; I now wish to give a new consent; do you also wish to give it? This way is commonly admitted by authors, and can rightly be employed without a lie, since null consent is not true consent; and otherwise the spouse ignorant of the impediment thus knows the nullity of the marriage sufficiently.

III. Way. If the spouse says: I am troubled by scruples concerning the validity of our marriage , and therefore let us renew our consent. This way can be admitted according to the more common opinion with St. Ligorius, no. 1117. For it is sufficient that the other party place consent independent of the prior consent; and for this it is sufficient if the party prudently doubts the validity of the first marriage.

Various other ways are also proposed by several Theologians; for example, if a spouse says to the other spouse: Tell me, please, if our marriage were null, would you not wish to contract again? Or: If you had not married me, would you not now wish to marry me? etc. But these ways are rightly rejected, because it is thus uncertain whether the other party intends to repeat consent for the preceding marriage or rather to consent to a new one. - See St. Ligorius, no. 1117.

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.

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.

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.

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.

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.

— Principle concerning the necessity of new consent. One must proceed from this principle. Although consent which would of itself suffice may have been given before, nevertheless by the removal alone of the cause of nullity (different from deficient consent) the matrimony is not convalidated, but new consent to matrimony is required, given by the person who is conscious of the nullity (cc. 1133, 1134).

And this is required for validity by ecclesiastical law (c. 1133, §2).

— Who must renew consent and in what manner. 1. If the impediment is public, the consent must be renewed in the form prescribed by law (c. 1135, §1) for the first celebration of matrimony.

What if the impediment is public by its nature, but occult in fact?

Since no exception of this kind can be gathered from the Code, even then the same form of renewal seems to have to be observed. But, with the permission of the Ordinary added, if the case requires it, the form of a marriage of conscience can be employed. If the matter must be hidden from the pastor, the confessor can be delegated by the Ordinary so that he himself, with two witnesses, may assist at the marriage. Of itself, however, the very reason of avoiding scandal demands that at least from publication the celebration become known. But per accidens it can happen that the publication itself becomes more scandalous (cf. De Smet, 729).

2. If the impediment is occult and known to both parties, it is enough that the consent be renewed privately and secretly by both parties (c. 1135, §2).

We understand occult both by its nature and in fact. Wherefore the marriage is supposed to have been celebrated in due form. But if otherwise, it must again be contracted in the legitimate form (c. 1137).

3. If the occult impediment is unknown to one party, it suffices that the party alone conscious of the impediment renew consent privately and secretly, which will be joined with the persevering consent of the other.

It is indeed necessary that the other party have persevered in consent. But, when contrary arguments are lacking, that perseverance is sufficiently demonstrated by the presumption itself from c. 1093. Therefore, if the other party had consented fictitiously, it is enough that he or she renew consent internally, c. 1136, §2. If the defect of consent was also external, as for example if it was vitiated by fear, an external manifestation of consent will be necessary, whether occult or even public, according as the defect was occult or became public.

What if both parties are ignorant of the nullity? From c. 1133 we gather that it does not suffice that the impediment have ceased or have been removed by dispensation, but consent must be renewed at least by one party who is made more certain concerning the impediment, unless recourse is had to sanation in the root. This has been authentically declared concerning impediments removed by the Code (cf. declaration of June 2-3, 1918, IV, 7, Periodica, IX, 150).

N.B. Before matrimony is convalidated, the parties must be warned, if it can be done, that they procure for themselves or carefully preserve the state of grace, in order to receive the sacrament worthily and fruitfully.

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.

243. • According to the diverse cause of invalidity of the matrimony, there is a diverse manner of acting in convalidation. Now, nullity of matrimony can be conceived as arising from a threefold source:

a) from a diriment impediment,

b) from defect of consent,

c) from defect of form.

929. Simple convalidation is that by which there is supplied that which was lacking from the beginning and rendered the matrimony invalid. It can be invalid from a threefold cause: a) from the incapacity of a person on account of a diriment impediment; b) from defect or vice of consent; and c) from defect of form. Hence there is a threefold diverse mode of revalidating matrimony.

930. Principle I. Convalidation of a matrimony void on account of an impediment. - "To convalidate a matrimony void 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." Thus can. 1133, § 1.

In the case a double condition is required for convalidation: the cessation of the impediment and renewal of consent.

A. Cessation of the impediment; whence convalidation is restricted to impediments which in the case can be taken away; otherwise it is impossible. An impediment can cease:

1° intrinsically, because the very fact which constitutes the impediment ceases to exist: thus the impediment of age ceases by the passage of time, ligamen is taken away by the death of the spouse, disparity of cult by the conversion of the unbelieving party, abduction by liberty being restored to the woman;

2° extrinsically, either a) by abrogation of the law: thus several impediments, abrogated by the code of law, ceased; or b) by dispensation obtained according to the norms indicated in the preceding question.

Let it be noted a) that the dispensation must first be sought before consent is renewed, because when the dispensation has been obtained the persons become capable of contracting validly;

b) that the impediment which was the cause of the nullity of the matrimony needs dispensation only when it still persists; whence, for convalidating a matrimony null on account of an impediment of the old law which has already been abrogated, it suffices to renew consent.

B. Renewal of consent to be furnished at least by the party conscious of the impediment: "this renewal is required by ecclesiastical law for validity, even if both parties furnished consent and afterward did not revoke it" (can. 1133, § 2).

From its nature "renewal of consent must be a new act of the will toward a matrimony which is known to have been null from the beginning" (can. 1134). Therefore it is required that one party or both be admonished concerning the nullity, so that, knowing the matrimony to be invalid, that party explicitly furnishes new consent; otherwise the renewal would be only a confirmation of the prior consent, ineffective for convalidating the matrimony.

The rules to be attended to in renewing consent are prescribed by the code, can. 1135:

1° "If the impediment is public, consent must be renewed by each party in the form prescribed by law," ordinary or extraordinary according to the circumstances, as was said n. 845 and 849, so that the convalidation may thus be publicly established.

2° "If it is occult and known to each party, it is enough that consent be renewed by each party privately and secretly."

3° "If it is occult and unknown to one party, it is enough that only the party conscious of the impediment renew privately and secretly, provided the other perseveres in the consent furnished."

Let it be noted: a) If the impediment, public by its nature, is occult in fact, a more or less secret form can be used with the permission of the Ordinary, by binding the witnesses to preserve secrecy and even by celebrating the matrimony in private houses.

b) If the occult impediment is known to each party, there is no need for the presence of a priest or witnesses; it suffices that each party express consent by whatever words signify it.

c) If the occult impediment is known to one party, it is not required that the other party, unaware of the impediment, be admonished: that party perseveres in the consent which was furnished in celebrating matrimony until that consent has been retracted by a positive act of the will; but the party conscious of the impediment must explicitly renew consent, in whatever explicit way, for which a merely internal act can suffice.

931. Principle II. Convalidation of a matrimony void on account of defect of consent. - "A matrimony void 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." Thus from natural law and from can. 1136, § 1.

Hence 1° it is altogether required and suffices that the non-consenting party validly consent, and it is not necessary to admonish the other party, provided that party's previously furnished consent perseveres, not having been retracted, as was said in the preceding number;

2° if consent was lacking on each side, it must be furnished anew by each side, as if matrimony were being contracted for the first time; likewise if the party who had validly consented afterward formally retracted consent.

The manner of renewing consent is indicated by can. 1136:

a) "If the defect of consent was merely internal, it is enough that the party who had not consented consent interiorly."

b) "If it was also external, it is necessary to manifest consent also externally, either in the form prescribed by law, if the defect was public, or in another private and secret way, if it was occult." In this latter case, the new consent can also be expressed by deed, as by cohabitation or conjugal copula had from the intention of consenting to matrimony.

932. Principle III. Convalidation of a matrimony invalid on account of defect of form. - "A matrimony null from defect of form, in order that it become valid, must be contracted anew in the legitimate form." Thus can. 1137.

In this form it must be revalidated publicly or secretly:

1° Publicly, if the nullity of the matrimony is publicly known, namely, to take away scandal; for this, however, it is not required that it be done in the highest degree of publicity: for special reasons the Ordinary can permit that the matrimony be celebrated privately, even at home, but before the pastor and witnesses who are to make the revalidation known, provided this suffices for removing scandal.

2° Secretly, yet before witnesses altogether trustworthy and who will preserve secrecy, if the nullity of the matrimony is occult or commonly unknown, namely, to forestall scandal and preserve the reputation of the spouses.

It can happen that one party refuses to contract in the legitimate form. a) If he only refuses to go to the church, but does not refuse to renew consent before the pastor and witnesses, they can be joined in the house or in another place to which they are prepared to go. b) If he refuses to appear before the pastor to whom the nullity is known, but is willing before the confessor, this confessor can be deputed to assist at the nuptials with two trustworthy witnesses. c) If he refuses to appear before the pastor or delegated priest and witnesses, care must be taken that through a proxy he express his consent before the pastor and witnesses. d) If he refuses even this, sanation in the root is to be sought, provided it is established that consent has not been revoked.

I say 1°. A simple dispensation removes the inability induced by law; conceded by one who enjoys legitimate power, it renders the person to whom it is given capable of entering marriage; and therefore it effects that consent furnished by the incapable person himself, and on that account ineffective, can now be effective. "As often as a law invalidates an act, it renders the will of the subject ineffective and impotent for contracting, for example, for transferring dominion, and this is to make the act incapable for contracting or ... for contracting thus." Examples: "the law makes ... a person incapable for some act in species," as one solemnly professed for contracting marriage; or it makes incapable relatively, "as, for contracting with a consanguineous woman"; or "it makes incapable for contracting thus," as happens in the Tridentine form. "And in all these cases the act itself is invalidated and the consent of the will is rendered ineffective for producing such an effect. But by this and not otherwise a person becomes incapable for the same effect." Suarez, De Leg. l. 5, c. 19, n. 4. A law invalidating surely does not remove the physical act of the will, but effects that that act or consent lacks juridical force for producing the contract. Therefore, when two consanguineous persons furnished conjugal consent, it is the law of the Church which rendered that consent ineffective; then by its dispensation it removes the ineffectiveness of the act, and the parties can now, because capable, enter marriage. But indeed the Church can so dispense in its invalidating law that all effects following from it are invalidated at the same time. And therefore, even without any renewal of consent, the marriage is immediately considered valid, and the other effects cease, as if it had been valid from the very beginning; the validity is from now, the legitimacy from then. That is to say, that consent, naturally sufficient, with the invalidating law of the Church removed and, by power of the same, the necessity of renewal removed, exercises its full effect of the act of the will and constitutes marriage. Such a dispensation is sanation in the root. Wherefore renewal of consent must not be called necessary from nature, but only from the law of the Church. When it removes the ineffectiveness of consent but demands its renewal for contracting marriage validly, its action is called a simple dispensation. - Cf. below n. 930.

I say 2°. Once a simple dispensation has been obtained, the party conscious of the impediment is now rendered capable for contracting and is bound by the law of the Church to renew consent. But if each party is conscious of the impediment, each must renew consent. When it is required that one, when that each party renew consent, will be said below in n. 929, Question 1.

I say 3°. Therefore there follows the necessity of that renewal, but from the positive law of the Church. But the Church requires that a new consent be furnished by the spouses knowing the nullity of the prior contract in the case of a marriage null on account of an impediment ceasing without dispensation. - Cf. above n. 927. Thus the S. Off. concerning the following case:

A certain Amalia, a non-Catholic not baptized, married John, a baptized heretic. During the marriage Amalia was baptized in some heretical sect and for some time lived maritally with John. Afterward, once the adultery of her husband had been known, she obtained a civil divorce. Finally she sought the faculty of entering second nuptials with a Catholic man. The S. Office on 8 Mar. 1899 responded: "A prior oath having been furnished by Amalia in the Curia NN, by which she declares that the marriage contracted with John after the baptism of Amalia herself was not ratified by the same persons knowing its nullity in a place where clandestine or mixed marriages are held valid, and provided that the Most Reverend Lord Archbishop is morally certain concerning the asserted ignorance of the spouses regarding the impediment of disparity of cult, let a document of liberty be given to the woman from the head of disparity of cult itself?" Cf. S. Off. 31 Aug. 1887; Pontif. Comm. for authentically interpreting the Code of Canon Law, 2-3 June 1918 - Card. Gennari, Consultazioni, v. 1, p. 633 - Card. Gasparri, De Matrimonio, n. 1138.

Question 1. Must consent be renewed before the Pastor and witnesses?

Resp. § 1. If the impediment is public, the consent must be renewed by each party in the form prescribed by law (Can. 1135).

The reason is both because then the reason for removing or preventing scandal urges, and 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 clandestinely revalidated, could separate and enter new nuptials with others with impunity.

§ 2. If it is occult and known to each party, it is enough that consent be renewed by each party privately and secretly.

§ 3. If it is occult and unknown to one party, it is enough that the party alone who is conscious of the impediment privately and secretly renew consent, provided the other perseveres in the consent furnished (Can. 1135).¹

The reason is that the Council of Trent, by prescribing the presence of the Pastor and witnesses, is deservedly presumed not to have wished to comprehend this case. For the Council wished only to meet the inconveniences which arose from nuptials celebrated secretly; but in our case the Marriage has already been publicly contracted, and therefore that danger is absent; therefore it suffices to place the new consent secretly. Besides, not only would extension of the law to this case be useless, but also harmful; indeed it would provide place for many scandals, expose the parties to defamation, and induce many other inconveniences. - Cf. S. Alphonsus, n. 1110.

¹ Cf. Addenda, p. 1138, n. 98.

Question 2. In how many ways can 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:

I. If the spouse simply says: Our Marriage is null on account of some impediment, or: The confessor told me that it is null, and therefore let us renew consent.

II. If the spouse says: I did not have true consent when I contracted Marriage; I now wish to furnish new consent; do you also wish to furnish it? - This mode is commonly admitted by authors, and can rightly be applied without a lie, since null consent is not true consent; and on the other hand the spouse ignorant of the impediment thus sufficiently knows the nullity of the Marriage.

III. If he says: I am troubled by scruples concerning the value of our Marriage, and therefore let us renew consent. This mode can be admitted according to the more common opinion with S. Alphonsus; for it suffices that the other party place consent independent from the prior one; but for this it is enough if he prudently doubts concerning the value of the first Marriage.

Various other modes are also exhibited by many theologians, for example, if the spouse says to the co-party: Say, I ask you, if our Marriage were null, would you not wish to contract again? Or: If you had not married me, would you not wish to marry now? etc. But these modes are deservedly rejected, because thus it is uncertain whether the other party intends to repeat consent into the preceding Marriage, or truly to consent into a new one. - Cf. S. Alphonsus, n. 1117.

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:

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

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

3. To which priest does it belong to treat matrimonial causes?

4. What must Philip do?

The first question was answered above, p. 292;

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

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.

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

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.

4. 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

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.