CONVALIDAZIONE

CONVALIDATION. —

I. GENERAL NOTIONS

It is a subsequent act to a voidable juridical act, by which the latter loses this quality and becomes perfect. To protect a particular interest, the law may indeed prescribe that a juridical act be performed with the use of certain forms or the presence of certain requirements, in the sense that the failure to comply with such prescriptions gives rise to the right, for the person whose interest is to be safeguarded, to seek the annulment of the act. When, however, the interest that the law intends to protect suffers no injury despite the failure to observe the required forms, the voidability no longer has any basis, in which case one speaks of the harmlessness of the defect; and the evidence of such harmlessness is derived from an action or omission on the part of the person who could assert the voidability of the act.

Thus, there is a *convalidation* when there is voluntary performance of the obligation imposed by the defective act; when, once the defect causing the voidability has ceased, there is confirmation or ratification by the person in whose interest the voidability is established; when what the defective act was intended to bring about occurs (e.g., the appearance in court of the defendant despite the nullity of the summons); and, finally, when the time established by law for asserting the voidability has elapsed.

It is controversial whether *convalidation* has retroactive effect; however, the preferable opinion is that of those writers who emphasize how, in general, the validity of the voidable act is not suspended until the *convalidation*, but is fully effective from the moment the act was performed, albeit conditioned upon the non-exercise of the action for annulment. *Convalidation* therefore merely removes the possibility of destroying the effects of the act.

Normally, *convalidation* is possible only for voidable acts, but it can also apply to null acts when the law expressly provides for it (cf. art. 1423 of the Italian Civil Code). And the *convalidation* of marriage in canon law is a typical example of the *convalidation* of a null act.

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II. OF MARRIAGE

The *convalidation* of marriage is the act by which an invalid marriage is rendered valid.

It may indeed happen that a marriage that is in fact invalid is null, either because the contracting parties lacked capacity, or because it was not contracted with the necessary consent, or because it was celebrated without the due form. Faced with such a marriage (since canon law does not recognize the notion of an annullable marriage but only admits that it may be either existent or non-existent), theoretically four remedies might be adopted: 1) cohabitation *uti frater et soror*; 2) dissimulation, that is, leaving the spouses in their good faith; 3) a declaration of nullity by the competent judge; 4) the *convalidation* of the marriage. Now, cohabitation *uti frater et soror* is a remedy entirely peculiar to certain exceptional conditions on the part of the two putative spouses; otherwise, it would place them in a very dangerous situation, and, in any case, as is obvious, it cannot be permitted if other remedies are applicable to the case. Dissimulation presupposes, first of all, that the nullity is not notorious, that both spouses are in good faith (that is, they have no doubts about the validity of their marriage), and also the prudent expectation that, if they were informed of the invalidity of the marriage, this could give rise to a greater evil (e.g., their refusal to convalidate the marriage, scandals, etc.). A declaration of nullity may be appropriate when the marriage is irremediable, or when the parties are irreconcilable, or if there is a danger of corruption for one party, or serious reasons necessitate contracting another marriage. Thus, in many cases, faced with a null marriage, the ordinary course to be followed is the reiteration of the marriage, which can occur in one of two forms: either as a simple *convalidation*, or as a *sanatio in radice*.

1. **Simple convalidation.** — Speaking of the first form, simple *convalidation*, it must be said that the same elements necessary for the celebration of marriage are required for simple *convalidation*, since this is nothing other than a new celebration of the marriage. Just as for the celebration of a valid marriage, the suitability of the persons, the due consent, and the manifestation of this consent in the form required by law are necessary, so too are these elements required for *convalidation*. This will in practice be achieved by supplying, at the moment of convalidation, the element or elements that were lacking at the celebration. And since the marital contract becomes existent only at the moment of *convalidation*—if the contracting parties are baptized (the question regarding the case of one baptized party and the other non-baptized is omitted here)—the Sacrament is simultaneously formed, so they must be (not for validity, but to attain all the effects of the Sacrament) in a state of grace at the moment of *convalidation*.

It is necessary to distinguish according to whether the nullity of the marriage arises from a diriment impediment, a defect of consent, or a defect of form.

a) In the case of a marriage null due to a diriment impediment, *convalidation* consists of a twofold act: a) the removal of the impediment, b) the renewal of consent, at least on the part of the spouse who was aware of the impediment (can. 1133 § 1).

As regards the removal of the impediment, it is obvious to note that, if it were an insurmountable obstacle—that is, an impediment of divine law from which the Church cannot dispense (e.g., the impediment of sacred orders)—the marriage could not be convalidated; if, however, the impediment had ceased *ex se*, that is, as it is said, *ab intrinseco* (or if the impediment were remitted by the parties themselves, e.g., disparity of cult), no act on the part of the ecclesiastical authority would be required with respect to the impediment, since the obstacle would no longer exist; the same applies if the impediment had ceased through the abrogation of the law (as occurred for some impediments upon the entry into force of the Code of Canon Law); if, finally, the dispensable impediment were still in existence at the time of *convalidation*, the competent authority would intervene by granting a dispensation, thereby restoring the capacity of the persons for marriage.

Once this impediment has been removed, if the consent previously given by the parties still persists—which is always presumed unless there is proof of revocation (cf. can. 1093)—nothing in itself would prevent the marriage from being considered a true and valid marriage from the moment the impediment was removed. However, by positive ecclesiastical law, such consent given by the spouses while the impediment existed, although naturally valid and persevering, has no juridical efficacy, and the marital bond does not arise unless a new act of will is placed by both spouses—or at least by the party now aware of the impediment—by which they intend to consent anew to the marriage with knowledge of its nullity (cf. cann. 1133–34). Yet both the necessity of renewing consent and the necessity of precise knowledge regarding the nullity of the marriage, being elements required solely by canon law (as declared by the CIC at can. 1133 § 2, resolving a previously disputed question), cannot be applied to marriages contracted by unbaptized persons, which, from the moment the impediment ceases or is removed—that is, the cause of invalidity—must be considered valid without any need for renewal of consent, except, of course, where there is a different provision by civil law.

As for the form in which the renewal of consent must take place, the procedure differs depending on whether the removed impediment was public (either by its nature or because it was known to at least two persons who could testify in an external forum) or occult (known only to the spouses, or at most to a confessor and a single witness).

In the first case, since the invalidity of the marriage is publicly evident, it is logical that consent must be renewed by both parties in the form prescribed for the celebration of marriage (cf. can. 1133 § 1), namely publicly before the parish priest and witnesses. However, a less solemn form is admitted in extraordinary cases (cf. can. 1093) or when the contracting parties are not subject to ecclesiastical law on the form of marriage (cf. can. 1099).

In the second case, if the impediment was occult but known to the parties—since the marriage is regarded as valid by outsiders—it will suffice for consent to be renewed by both parties, even in a completely private and secret manner (cf. can. 1133 § 2). If, however, the impediment was occult and known to only one party, it will suffice for the party aware of the impediment to renew consent *privatim et secreto* without needing to inform the other party, provided that the latter still perseveres in the consent previously given (cf. can. 1133 § 3).

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483 CONVALIDATION 484

b) If the marriage is null due to lack or defect of consent, it is necessary:
a) that the cause producing the defect of consent (error, fear, etc.) cease;
b) that the parties—or at least the party—become aware that the marriage is null;
c) that an effective consent be given.

If the defect of consent is on both sides, it is necessary that both give true consent; if it is on one side only, it is necessary that this party consent, provided that the consent previously given by the other party still persists (cf. can. 1136 § 1).

As for the manner of giving consent, canon law only requires that it be valid in the external forum. Therefore, if the defect of consent was only internal and did not appear externally, it suffices that consent be renewed by an internal act; and in such a case, if the defect of consent occurred on only one side, there is no requirement that the other party be informed of the nullity of the marriage.

If, however, the defect of consent is evident even in the external forum, a valid consent must be manifested in the external forum: thus, if the defect was external and public, a new public celebration is required; if it was external but occult, it suffices that consent be manifested in a private and secret manner (cf. cann. 1136 §§ 1–2).

c) In the case of a marriage null due to defect of form (because it was celebrated with a total lack of form or with insufficient form), convalidation is effected by a new celebration in the lawful form (cf. can. 1137), though the Ordinary may, for a just cause, dispense from the public form and permit the parish priest to adopt a more reserved or less solemn form.

2. *Sanatio in radice*. — There are cases in which it is impossible to apply the forms of convalidation thus far described, either because one or both parties refuse to cooperate in renewing consent or form, or because it is desired that the juridical effects, instead of taking effect from the moment of convalidation, should begin at an earlier time. In such cases, recourse must be had to a wholly extraordinary remedy known as *sanatio in radice*.

Regarding the history of this institution, it should be noted that although it cannot be said when the Supreme Pontiffs began to grant *sanatio in radice*, historical records attest to the concessions made by Boniface VIII for the marriage of Queen Maria and Sancho, King of Castile (when the latter was already deceased), and that of Ildefonso, King of Lusitania, and the Countess of Poland. The first doctrinal formulation of *sanatio* was provided by Johannes Andreae (d. 1308), but the fundamental elements upon which it is based were applied by Clement V (1305–1314) in matters concerning benefices. Subsequently, as reported by Benedict XIV, there are accounts of many other concessions granted by Gregory XIII, Clement IX, and Clement XII. The application of *sanatio in radice* became increasingly frequent over time, not only for particular marriages but also through collective provisions for all marriages in certain dioceses or even regions, issued on the occasion of religious pacifications or legislative changes to resolve particular situations. Notable among these are the concessions granted by Julius III (1554) for England, Clement VIII (1595) for the Greeks, Pius VII (1801–1809) for France, Pius IX (1856) for Austria, Leo XIII (1892) for marriages celebrated by heretics without observing the form prescribed by the Church, Pius X (1906) for the German Empire, later extended to Hungary (1909) and then to the entire Church (1912).

Canon 1138 § 1 expressly declares that *sanatio in radice* consists in the convalidation of the marriage, which entails:
a) the dispensation or cessation of the impediment that caused the nullity;
b) the dispensation from the obligation of renewing consent;
c) the retroactive effect, *fictio iuris* notwithstanding, regarding canonical effects, *ad praeteritum*; this last phrase clearly expresses that only the canonical effects are said to begin *ex tunc* (i.e., they are referred back to the time of the marriage’s celebration, as if it had been valid from the outset), while the existence of the marital contract—and, if the parties are baptized, of the sacrament—cannot begin *ex tunc*, since in this matter no *fictio iuris* can be presumed (cf. can. 1138 § 2). Sometimes, however, the retroactivity of the effects is limited to an intermediate time rather than being traced back to the moment of celebration.

The juridical foundation of sanatio in radice is as follows. If a law forbids marriage under pain of nullity, that consent of the parties which, in itself naturally effective, would give rise to the matrimonial bond, precisely because of such prohibition becomes juridically ineffective. But such a prohibition can be removed by the legislator himself, since it is a purely human norm: this occurs precisely through the dispensation from the impediment. Once this is done, in view of natural law alone, that consent naturally effective given by the contracting parties would become generative of the matrimonial bond if, as has been said above, canon law did not require the renewal of consent. Now, with sanatio in radice the legislator derogates from all the norms of canon law and thus nothing prevents a naturally valid consent from fully exercising its efficacy. In this way the Church, juridically, considers the marriage valid ex tunc, for all canonical effects: that is, once the dispensation has intervened from the time of celebration and, consequently, such a marriage is considered as if it had been validly celebrated from the moment of the giving of consent and as if no impediment had ever existed. Therefore, all the effects of the irritating law are considered as abrogated for the past.

If, however, the cause of the nullity of the marriage ceases ex se, in sanatio in radice there would be another legal fiction, inasmuch as it would retroactively remove such a cause to the time of celebration, bringing all juridical effects back to that date. From these elements it is clear how sanatio in radice differs from simple convalidation. The latter has consequences only for the future, does not produce effects regarding the legitimacy of children born previously (though it may produce their legitimation), requires the cooperation of the spouses to renew consent and to celebrate in due form; whereas the former goes back to the moment of the celebration of the marriage, children born are considered as procreated during a valid marriage, requires no cooperation on the part of the contracting parties inasmuch as it considers the previously manifested consent as valid, and all this is produced by means of a single act of dispensation by the competent authority.

If all the elements mentioned above, included in can. 1138 § 1, have intervened in the sanation of a given marriage, doctrine uses the term perfect sanatio, whereas when not all the aforesaid elements concur (e.g., if the dispensation from the impediment is retroactively applied not to the moment of celebration but to a later date, or if one party were willing to renew consent) one speaks of imperfect sanatio.

The essential conditions for sanatio in radice to be applied are the following: a) that the marriage be invalid due to a canonical impediment from which the Holy See can dispense, or due to a defect of form. If, in fact, it were a matter of an impediment of divine law the Church could not dispense; and if such an impediment, in a period subsequent to the celebration, were to cease, the Church, even though able to do so, does not customarily grant sanatio in radice even from that moment (can. 1139 § 2); b) that the consent given at the celebration be a naturally valid consent and only juridically ineffective because of the obstacle arising from the canonical impediment or from the defect of form (can. 1139 § 1). This is truly the root which is healed: if it were non-existent one could not speak of sanatio. In other words, it is required that the consent have been truly marital on the part of both spouses (if one party had not given such consent one could not sanate in radice because the consent of the parties cannot in any way be supplied), which may well occur even if the contracting parties had known of the existence of the impediment and hence of the invalidity of the marriage at the time of celebration. If, however, at the celebration consent was lacking but subsequently given—it is indeed possible that to a merely fornication or concubinage bond there succeeded a matrimonial will through a private exchange of consent—the sanatio could be applied from the moment when consent was given (can. 1140 § 2); c) it is further required that the consent persist, i.e., remain at the time of the sanatio, which is always presumed when it has been previously given (can. 1093); indeed it is not presumed revoked even if the spouses live in disagreement, or are ready to separate or to seek a declaration of nullity (for interpretative will is irrelevant) or even if they have in fact or by sentence obtained legal separation.

As may be seen from the complex of conditions required for sanatio to be granted, it is not necessary that there be the species vel figura matrimonii, as might seem to be suggested by the very wording of can. 1139 § 1: Quodlibet matrimonium; therefore even in a civil marriage the existence of marital consent is presumed; indeed one might say that even a simple cohabitation more uxorio could give rise to a presumption of sufficient marital consent in those countries where, according to civil law and custom, no particular form is required for marriage; d) finally, since this is a dispensation so grave in the universal law, a just cause is required: such a cause generally arises from the situation of the spouses and from the fact that it is not possible or not expedient to apply simple convalidation; e.g., if one party could not be admonished regarding the invalidity of his marriage, or if he refuses to renew consent, or if the nullity were produced through the fault or negligence of the parish priest or the Ordinary.

Among the requirements for sanatio there is neither the will nor the knowledge of the parties (can. 1138 § 3). And this principle is justified by the fact that the dispensation is nothing other than a relataio legis, which can well be granted by the legislator without the consent of the subject, indeed against the will of the parties (e.g., in sanations in globo).

It is also possible that neither of the spouses be informed of the sanatio having taken place: e.g., in the case that the spouses were unaware of the nullity, or if revelation were feared to cause harm or scandal; indeed it could even be applied in the case where one of the parties were already deceased or when both parties were deceased, as regards juridical effects (though in such a case one would not properly speak of sanatio), and it would also be possible when one of the spouses had become mentally ill.

The competent authority to grant sanatio is the Holy See (can. 1141). That the Supreme Pontiff possesses this power follows from the fact that both the dispensations contained in the sanatio and the retroactivity of its effects are nothing other than derogations from purely ecclesiastical laws; that it is reserved to the Supreme Pontiff follows from the dispensation concerning universal laws of the Church. Ordinarily the pope in granting sanatio in radice employs the Sacred Penitentiary for the internal forum; for the external forum the Sacred Congregation of the Holy Office when the case involves an impediment of disparity of cult or one party is non-Catholic; the Sacred Congregation for the Eastern Church if one or both parties are Oriental; the Sacred Congregation of Propaganda Fide if the parties reside in territory subject to it; in all other cases the Sacred Congregation for the Discipline of the Sacraments. Naturally, since this is a faculty belonging to the Holy See, Ordinaries and other subjects may be delegated to exercise II.
It is debated in doctrine whether, in cases of urgent necessity, the Ordinary may grant a sanatio even without express delegation from the Holy See. Some authors, holding that in such a case there would be a conflict between divine law and canon law, are inclined to affirm this possibility. But, apart from general considerations, it seems that the clear provision of canon 1141, in its energetic wording and granting unique power from the Apostolic See, imposes a negative answer, removing, in its particular determination, all force from the opposing argument that would appeal to the general concession of canon 81.

III. Moral obligations.

1. Obligations of the confessor and the parish priest

The dissolution of conjugal unions, even if radically vitiated, does not occur without great inconvenience. To avoid this, pastors and spiritual directors must do everything possible to bring about the convalidation of marriages, either in the simple form or by radical sanation, as the case may require: the parish priest is bound to this by an official duty, the confessor by a duty of charity.

2. Obligations of the spouses

Are the spouses bound to convalidate their marriage? First, it must be determined whether the nullity of the marriage is imputable to both spouses, to one only, or to neither. If the responsibility is shared or does not exist, there is only an obligation of charity on the part of the spouses toward one another to remedy the situation by convalidation; but since charity does not oblige under grave inconvenience, this obligation can easily cease to apply.

If, however, the responsibility lies with only one spouse—whether because he or she simulated consent or induced the other party to marry through fear or for any other reason—there is no doubt that he or she is bound in justice to convalidate the marriage, provided that the other party would suffer irremediable harm from its dissolution. If, on the other hand, the reparation of the injury can be achieved in another way, some hold that the guilty pseudo-spouse is equally bound to convalidate, since the law favors the one who has suffered the injury rather than the one who committed it; others disagree, arguing that the obligation to make reparation arises solely from the injury done, which in this case could be repaired in another way, even outside of marriage.

D’Annibale sides with the former view if the marriage has already been consummated, and with the latter if it has not (I. D’Annibale, *Summula theologiae moralis*, 5th ed., III, Roma 1908, p. 414, no. 486).

During the period from the discovery of the invalidity of their marriage until its convalidation, the putative spouses are in the condition of unmarried persons, and all norms governing their life during this transitional period must be drawn from this consideration.

a) If the marriage is certainly invalid and both putative spouses know of the nullity, they must abstain from marital acts. If only one of them is aware of the nullity, he or she must inform the other party; and if for any reason this cannot be done, he or she must seek a pretext to abstain from marital acts. However, if the woman were forced to perform such acts under grave threats, she could remain passive, provided there is no danger of consent.

Indeed, if the marriage were null due to some ecclesiastical impediment, some authors say that in this case of very grave inconvenience the impediment would cease to apply on the basis of the well-known principle *lex ecclesiastica non obligat cum gravi incommodo*, and thus the marriage would be convalidated forthwith (cf. A. Lehmkuhl, *Theologia moralis*, 2nd ed., Freiburg 1910, no. 1053).

b) If the marriage is doubtfully valid, a distinction must be made:
a) If the doubt is negative, it need not be considered; if it is positive and well-founded, an investigation must be undertaken to discover the truth. During the investigation, if both parties are uncertain, they must abstain from marital acts so as not to expose themselves to the danger of fornication; if only one party doubts, he or she may only submit passively to such acts but cannot initiate them.
b) If, after the investigation, the doubt remains, the marriage is to be considered valid even in the internal forum, according to the well-known principle of the favor matrimonii (can. 1014); consequently, there is no need to seek convalidation, and marital acts become licit.

At the moment of convalidation, the spouses must be in a state of grace, for then the union becomes a true marriage, and thus, being a matter for the faithful, a true sacrament.