The Convalidation of a Marriage Invalid on Account of Defect of Consent

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.

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

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

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

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

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

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

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

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

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

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

³⁰³ Code of Canon Law, can. 1134.

³⁰⁴ Ibid., can. 1137.

249. • I. Necessity of a new and valid consent.

"Matrimony void on account of defect of consent is convalidated if the party who had not consented now consents, provided that the consent given by the other party perseveres." (Can. 1136, § 1.)

a) The one condition, but one altogether necessary and entirely indispensable for the convalidation of matrimony invalid on account of defect of consent, is that the party who had not consented validly consent.

b) The party ignorant of the nullity is not to be warned.

c) Nevertheless his or her consent previously given must persevere. But it perseveres if it has not been retracted by a positive act of the will.

250. • II. Concerning the manner of giving that consent.

a) "If the defect of consent was merely internal, it suffices that the party who had not consented consent inwardly." (Can. 1136, § 2.)

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 manner, if it was occult." (Ibid., § 3.)

N. B. Here also there applies what we said at the end of the preceding paragraph concerning the care to be expended by the parish priest or confessor that that consent be given in the state of grace.

Question 7. Is consent presumed to persevere?

Resp. Even if marriage has been entered invalidly by reason of an impediment, the consent given is presumed to persevere until its revocation has been established (Can. 1093).