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The Convalidation of an Invalid Marriage Between a Catholic Party and a Non-Catholic Party
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Wouters, Manual of Moral Theology
Vol. II, Bk. III, Tr. VIII, Diss. II, Appendix I. On Invalid Mar…, Pt. II, Sect. II, Scholion I. On the Convalidation of an Invalid Marriage Between a Catholic Party and a Non-Catholic Party
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.