The Convalidation of a Marriage Invalid on Account of a Diriment Impediment

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

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

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

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

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

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

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

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

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

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

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

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.

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

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

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

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

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

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

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

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

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

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

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

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.

244. • "For convalidating 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." (Can. 1133, § 1.)

Therefore a twofold condition is required for convalidation: cessation of the impediment and renewal of consent.

245. • a) Cessation of the impediment.

1. Convalidation is restricted to impediments which can be removed in one way or another. For if there is question of an immovable impediment, convalidation is impossible.

2. Sometimes an impediment ceases intrinsically, because the very fact which constituted the impediment no longer exists. Thus the impediment of age ceases by the flow of time, the bond is removed by the death of the spouse, disparity of worship ceases through the conversion of the unbelieving party, and raptus when liberty has been restored to the woman.

3. Sometimes it ceases extrinsically, through abrogation of the law. Thus several impediments of the former law ceased from the day 19 May 1918, because they were abrogated by the Code of Canon Law.

4. An impediment also can cease extrinsically through dispensation. We treated broadly above in Chapter VI concerning this manner of removing an impediment.

5. Let it be noted carefully that only then does the impediment which was the cause of nullity of the matrimony need dispensation, when it still persists.¹

¹ Cf. Vermeersch-Creusen, cited work, t. II, n. 449. - Capello, cited work, n. 844.

b) Renewal of consent.

246. • 1. Its necessity.

1. Renewal of consent is always required, at least with respect to the party conscious of the impediment. (Can. 1133, § 1.)

2. "This renewal is required by ecclesiastical law for validity, even if at the beginning each party gave consent and afterwards did not revoke it." (Ibid., § 2.)

247. • 2. Its nature.

"The renewal of consent must be a new act of the will into a matrimony which is known to have been null from the beginning." (Can. 1134.)

Therefore it is necessary that the other party or each party be warned concerning the nullity, and then that explicit renewal of consent be made by him or her.

248. • 3. Its manner.

The manner to be employed in renewal of consent must be various according to the various cases which can occur.

But there is a threefold hypothesis:

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

1° "The form prescribed by law," whether ordinary or extraordinary, according to the circumstances, as was said above in Chapter VII.

2° If, however, the impediment is public by nature but in fact occult, a more or less secret form can be employed with permission of the Ordinary, by binding the witnesses to observe secrecy and even by celebrating the matrimony in private dwellings.²

² Vermeersch-Creusen, cited work, t. II, n. 451, I. - Capello, cited work, n. 845, 1°.

2. "If it is occult and known to each party, it suffices that consent be renewed by each party privately and secretly." (Can. 1135, § 2.)

In this hypothesis there is no need of the presence of a priest or witnesses. It suffices that each express consent by these or similar words: I receive you as husband, I receive you as wife.

3. "If it is occult and unknown to one party, it suffices that only the party conscious of the impediment renew consent privately and secretly, provided the other perseveres in the consent given." (Can. 1135, § 3.)

1° It is no longer necessary that the party who is ignorant of the impediment and nullity be warned.

2° Consent must be renewed explicitly, but this can be done in any way, even by an internal act alone.

3° The other party, unaware of the nullity, perseveres in the consent given in the celebration of matrimony until he or she has retracted it by a positive act of the will.

N. B. Let the parish priest or confessor take care, insofar as possible, that the putative spouses, or at least the party conscious of the nullity, be in the state of grace when they renew consent, because at that time they receive the sacrament.

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

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

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

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

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

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

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

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

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

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

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

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.