Convalidation

CONVALIDATION. —

I. GENERAL NOTIONS

It is an event subsequent to an annullable juridical act, by which the latter loses that quality and becomes perfected. In order to protect a particular interest, the law may in fact prescribe that a juridical act be performed with the use of certain forms or in the presence of certain requirements, in the sense that failure to observe such prescriptions gives the person whose interest is to be protected the right to request annulment of the act. When, however, the interest that the law seeks to defend suffers no injury, notwithstanding failure to observe the required forms, annulability no longer has any reason to exist; in such a case one speaks of the harmlessness of the defect, and evidence of such harmlessness is derived from an action or omission on the part of the person who could invoke the annulability of the act.

Thus convalidation occurs when the obligation imposed by the defective act is voluntarily performed; when, once the defect causing annulability has ceased, confirmation or ratification is given by the person in whose interest annulability itself is established; when that which the defective act was intended to bring about is carried out (the appearance in court of the person summoned, notwithstanding the nullity of the summons); and, finally, when the period established by law for invoking annulability is allowed to elapse.

It is disputed whether convalidation has retroactive effect; the view of those writers who emphasize that, in general, the validity of an annullable act is not suspended until convalidation, but is complete from the moment the act was performed, although conditional upon the non-exercise of the action for annulment, should nevertheless be regarded as preferable. Convalidation therefore removes only the possibility of destroying the effects of the act.

Normally convalidation is possible only for annullable acts, but it may also apply to void acts when

the law expressly so provides (v. art. 1423 of the Italian Civil Code). And the convalidation of marriage in canon law is a typical example of the convalidation of a void act.

It may in fact happen that a seemingly valid marriage is actually 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 requisite form. Faced with such a marriage (since canon law does not recognize the notion of an annullable marriage, but only admits that a marriage may be existent or nonexistent), in theory there could be four remedies to adopt: 1) cohabitation uti frater et soror; 2) concealment, that is, leaving the spouses in good faith; 3) declaration of nullity by the competent judge; 4) convalidation of the marriage. Cohabitation uti frater et soror, however, is an entirely exceptional remedy, to be adopted only in cases involving extraordinary circumstances on the part of the two presumed spouses; otherwise it would place them in a highly dangerous situation and, in any event, obviously cannot be permitted if other remedies can be applied to the case. Concealment presupposes, first of all, that the nullity is not notorious, that both spouses are in good faith (that is, that they have no doubts concerning the validity of their marriage), and also the prudent expectation that, if they were informed of the invalidity of the marriage, this might generate a worse 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 perversion for one party, or when serious reasons make it necessary to contract another marriage. Thus, in many cases, when faced with a null marriage, the ordinary course to be followed is the restoration of the marriage, which may take one of two forms: either simple convalidation, or sanatio in radice.

1. Simple convalidation

As regards 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 the latter is nothing other than a new celebration of the marriage. Just as, therefore, the suitability of the persons, due consent, and the manifestation of that consent in the form required by law are necessary for the celebration of a valid marriage, so these elements are required for convalidation. In practice, this is achieved by putting into effect, at the moment of convalidation, the element or elements that were lacking at the celebration. And since the marriage contract comes into existence only at the moment of convalidation—and, if the contracting parties are baptized (the question of the case in which one party is baptized and the other an unbeliever is omitted), the Sacrament is formed simultaneously—they must be (not for validity, but in order to obtain all the effects of the Sacrament) in a state of grace at the moment of convalidation.

A distinction must be made according as the nullity of the marriage derives from a diriment impediment, a defect of consent, or a defect of form.

a) In the case of a marriage null on account of a diriment impediment, convalidation consists of a twofold act: a) removal of the impediment; b) renewal of consent, at least by the spouse conscious of the impediment (can. 1133 § 1).

As regards the removal of the impediment, it is obvious that, if the obstacle were insurmountable—that is, if it were an impediment from which dispensation was impossible (an impediment of divine law), or one from which the Church, although able to do so, did not dispense (e.g., the impediment of Holy Orders)—the marriage could not be convalidated. If, on the other hand, the impediment had ceased ex se, that is, as it is said, ab intrinseco (or if the impediment were removed by the parties themselves, e.g., disparity of worship), no act on the part of ecclesiastical authority would be required with regard to the impediment, since the obstacle would no longer exist. The same is true if the impediment had ceased through the abrogation of the law (as occurred with certain impediments when the CIC entered into force). If, however, at the moment of convalidation the dispensable impediment still existed, the competent authority would intervene by granting the dispensation, thereby establishing the parties’ capacity for marriage.

Once the impediment has been removed in this way, if the consent previously given by the parties still persists (which is always presumed, except in the case of a proven revocation, can. 1093), there would in itself be nothing to prevent the marriage, from the moment the impediment was removed, from being regarded as a true and valid marriage. Nevertheless, by positive provision, although the consent given by the spouses while the impediment existed is naturally valid and persevering, it has no juridical efficacy, and the matrimonial bond does not arise except through a new act of will expressed by both spouses, or at least by the party now conscious of the impediment, by which that party intends to consent anew to the marriage, knowing of its nullity (cann. 1133–34). But since both the necessity of renewing consent and the necessity of precise knowledge concerning the nullity of the marriage are requirements imposed solely by canon law (as the CIC declares in can. 1133 § 2, thereby resolving a previously disputed question), this cannot be applied to a marriage contracted by non-baptized persons. Such a marriage, from the moment the impediment—or, that is, the cause of the invalidity—ceases or is removed, must be regarded as valid without any need to renew consent, subject, naturally, to any contrary provision of the civil legislator.

As for the form in which consent must be renewed, the procedure differs according as the impediment removed was public (either by its nature or because it was known to at least two persons capable of proving it in the external forum) or occult (known only to the spouses, or at most to the confessor and a single witness).

In the first case, since the invalidity of the marriage is publicly known, it is logical that consent must be renewed by both parties in the form established for the celebration of marriage (can. 1135 § 1), that is, publicly before the parish priest and witnesses; a less solemn form is also admitted in extraordinary cases (can. 1098), or for contracting parties who are not subject to ecclesiastical law concerning the form of marriage (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 is sufficient for consent to be renewed by both parties, even in an entirely private and secret form (can. 1135 § 2). If, however, the impediment was occult and known to only one party, it is sufficient for the party aware of the impediment to renew consent privatim et secreto without needing to inform the other party, provided, however, that the latter perseveres in the consent given at the time (can. 1135 § 3).

b) If the marriage is null owing to the absence or defect of consent, it is necessary: α) that the cause which produced the defect of consent cease (error, metus, etc.); β) that the parties, or the party concerned, know that the marriage is null; γ) that effective consent be given.

If the defect of consent is attributable to both parties, both must give true consent; if it is attributable to only one party, that party must consent, provided that the consent given by the other party still subsists (can. 1136 § 1).

As for the manner of giving consent, canon law requires only that the validity of the marriage be established in the external forum. Therefore, if the defect of consent was purely internal, without appearing externally, it is sufficient for consent to be renewed by a purely internal act; and in that case, if the defect of consent occurred on the part of only one party, it is not required that the other contracting party be informed of the nullity of the marriage.

If, on the other hand, the defect of consent is also apparent in the external forum, valid consent must be manifested in the external forum; consequently, if the defect was external and public, a new celebration in public form is required; if it was external and occult, it is sufficient for the consent to be manifested privately and secretly (can. 1136 §§ 1–2).

c) In the case of a marriage null on account of a defect of form (because it was celebrated with a total defect of form, or with an insufficient form), convalidation is effected by a new celebration in the lawful form (can. 1137), although the Ordinary is empowered—for a just cause—to dispense from the public form and to permit the parish priest to adopt a more private or less solemn form.

2. Sanatio in radice

There are cases in which application of the form described above to a null marriage becomes impossible, either because one or both parties would refuse to provide the necessary cooperation for the renewal of consent or of the form, or because it is desired that the legal effects should begin, not at the time of convalidation, but at an earlier period. In such a case, there remains no alternative but to apply an entirely extraordinary means, called sanatio in radice.

As regards 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, the concessions made by Bonifacio VIII for the marriage of Queen Maria and Sancio, King of Castile, when the latter was already dead, and for that of Ildefonso, King of Lusitania, and the Countess of Poland, are historically known. The first doctrinal formulation of sanatio was made by Giovanni d’Andrea (d. 1308), but the fundamental elements on which it rests were applied by Clemente V (1305–1314) in matters relating to benefices. Subsequently, there are accounts, reported by Benedetto XIV, of many other concessions made by Gregorio XIII, Clemente IX, and Clemente XII. In the course of time, application of sanatio became increasingly frequent, not only for particular marriages but also through collective measures for all marriages in particular dioceses or even regions, issued on the occasion of religious pacifications or changes in legislation in order to resolve particular situations. Thus, the sanctions granted by Giulio III (1554) for England, by Clemente VIII (1595) for the Greeks, by Pio VII (1801–1809) for France, by Pio IX (1856) for Austria, by Leone XIII (1892) for marriages celebrated by heretics without observing the form established by the Church, and by Pio X (1906) for the German Empire—which was later extended to Hungary (1909) and then to the whole Church (1912)—are famous.

Canon 1138 § 1 expressly declares that sanatio in radice consists in the convalidation of the marriage, which entails: a) the dispensation from, or cessation of, the impediment that caused the nullity; b) dispensation from the obligation to renew consent; c) the retrotractio, per fictionem iuris, circa effectus canonicos, ad praeteritum. This last phrase clearly expresses that it is only the canonical effects which, as is said, begin ex tunc (that is, are referred back to the time of the celebration of the marriage, as though the marriage had been valid), whereas the existence of the matrimonial contract, and, if the parties are baptized, of the Sacrament, can begin only ex nunc, that is, from the convalidation itself, since in this matter no fictio iuris can be conceived (can. 1138 § 2). At times, however, the retroactivity of the effects is limited to an intermediate time, rather than being referred back to the moment of celebration.

The juridical foundation of sanatio in radice is as follows. If a law prohibits marriage under pain of nullity, the consent of the parties—which by its very nature would be effective and would bring the matrimonial bond into being—becomes legally ineffective precisely because of that prohibition. But such a prohibition may be removed by the legislator himself, since it is a purely human norm: this occurs precisely through dispensation from the impediment. Once this has been done, and natural law alone being considered, the naturally effective consent given by the contracting parties would become generative of the matrimonial bond if, as stated above, a canonical law did not require the renewal of consent. Now, through sanatio in radice, the legislator derogates from all the norms of canon law, and nothing then prevents naturally valid consent from fully expressing its efficacy. In this way, the Church juridically considers the marriage valid ex tunc, with respect to all canonical effects: that is, it supposes that the dispensation was granted from the time of celebration and, consequently, considers the marriage as though it had been validly celebrated from the moment consent was given and as though no impediment had existed. Accordingly, all the effects of the invalidating law are regarded as abrogated for the past.

If, moreover, the cause of the nullity of the marriage were to cease ex se, sanatio in radice would involve another legal fiction, inasmuch as it would refer the removal of that cause back to the time of celebration, assigning all the legal effects to that date. These elements clearly show how sanatio in radice differs from simple convalidation. The latter has consequences only for the future; it produces no effects concerning the legitimacy of children previously born (although it may produce their legitimation); and it requires the cooperation of the spouses in renewing consent and in celebrating the marriage in the proper form. The former, by contrast, reaches back to the time of the celebration of the marriage; children born are considered to have been begotten during a valid marriage; it requires no cooperation on the part of the contracting parties, since it regards the consent previously manifested as valid; and everything is produced by a single act of dispensation by the competent authority.

If all the elements mentioned above, contained in can. 1138 § 1, have intervened in the sanatio of a given marriage, doctrine refers to it as sanatio perfecta; whereas, when not all the aforesaid elements are present (for example, if the dispensation from the impediment were referred back not to the time of celebration but to a later date, or if one party were willing to renew consent), it is called sanatio imperfecta.

The essential conditions for the application of sanatio in radice are the following: a) that the marriage be invalid on account of an impediment of canon law from which the Holy See grants dispensation, or on account of a defect of form. For if it concerned an impediment of divine law, the Church could not dispense; and if such an impediment had ceased in a period subsequent to the celebration, the Church, although able to do so, does not ordinarily grant sanatio in radice even from that moment (can. 1139.

§ 2); β) that the consent given at the celebration be a naturally valid consent and merely 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 that is healed: if it were nonexistent, 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, the marriage could not be healed at the root, because the consent of the parties cannot in any way be supplied), which may very well be the case even if the contracting parties had known of the existence of the impediment and therefore of the invalidity of the marriage at the time of its celebration. If consent was lacking at the celebration, but was given subsequently—for it is possible that a matrimonial intention may later have been grafted onto a fornicator or concubinary relationship through an exchange of private consent—sanatio could be applied from the moment when the consent was given (can. 1140 § 2); γ) it is further required that the consent persevere, that is, persist at the time of the sanatio, which is always presumed when it was previously given (can. 1093); indeed, it is not presumed to have been revoked even if the spouses live in disagreement, or were ready to separate or to seek a declaration of nullity of the marriage (the interpretative will is, in fact, irrelevant), or had even obtained legal separation either de facto or by judgment.

As can be seen from the totality of the conditions required for proceeding to sanatio, it is not necessary that there be the species vel figura matrimonii, as might seem to follow from the very wording of can. 1139 § 1: Quodlibet matrimonium; thus, even in a civil marriage, the existence of marital consent is presumed; indeed, it might be said that even a simple convivencia mare uxorio could lead to a presumption of sufficient marital consent in countries where, according to civil law and custom, no particular form was required for marriage; δ) finally, since this is a dispensation of such gravity under the universal law, a just cause is required: this cause generally arises from the situation of the spouses and from the fact that it is not possible or expedient to apply simple c.; for example, if one party could not be informed of the invalidity of the marriage, or if that party refused to renew the consent, or if the nullity had been caused by the fault or negligence of the parish priest or the Ordinary.

Among the requirements necessary for sanatio there is neither that of the parties’ intention nor that of their knowledge (can. 1138 § 3). This principle is justified by the fact that the dispensation is nothing other than a relaxatio legis, which may quite properly be granted by the legislator without the consent of the subject, indeed against the will of the parties (e.g., in sanationes in globo).

It is also possible that neither of the spouses be informed that sanatio has taken place: for example, if the spouses were unaware of the nullity, or if disclosure were feared to cause harm or scandal. Indeed, it could also be applied where one of the parties had died, or even where both parties had died, as regards the juridical effects (though in that case one would not properly speak of sanatio); and it would likewise be possible where one of the spouses had become mentally ill.

The authority competent to grant sanatio is the Holy See (can. 1141). That the Supreme Pontiff possesses this power follows from the fact that both the two dispensations contained in sanatio and the retroactivity of its effects are nothing other than exceptions to purely ecclesiastical laws; that it is reserved to the Supreme Pontiff is then a consequence of the fact that the dispensation concerns universal laws of the Church. Ordinarily, in healing at the root, the pope makes use of the S. Penitentiary for the internal forum; for the external forum, of the S. Congregation of the Holy Office when the case involves the impediment of disparity of worship or one party is non-Catholic; of the S. Congregation for the Oriental Churches if one or both parties are Eastern Christians; of the S. Congregation de Propaganda fide if the parties reside in territory subject to it; and in every other case, of the S. Congregation for the Discipline of the Sacraments. Naturally, since this is a faculty belonging to the Holy See, Ordinaries and others may be invested with it ex delegatione.

It is disputed in doctrine whether, in a case of urgent necessity, the Ordinary may grant sanatio even without an express delegation from the Holy See. Some authors, holding that in such a case there is a conflict between divine law and canon law, answer in the affirmative. But, apart from general considerations, it seems that the clear provision of can. 1141, in its emphatic wording, «concedi unice potest ab Apostolica Sede», requires a negative answer, removing, by its particular determination, all force from the contrary argument, which would appeal to the general concession of can. 81.

III. MORAL OBLIGATIONS.

3. Obligations of the confessor and the parish priest

The dissolution of marital unions, even when radically defective, does not occur without great disadvantages. To avoid these, pastors and spiritual directors must do everything possible to bring about the c. of marriages, according to the circumstances, either in the form of simple c. or of sanatio in radice: the parish priest is bound to this by an official duty, the confessor by a duty of charity.

4. Obligations of the spouses

Are spouses bound to convalidate their marriage? First of all, it is necessary to determine whether the nullity of the marriage is imputable to both spouses, to one alone, or to neither. If responsibility is shared or nonexistent, there exists only an obligation of charity on the part of the spouses, one toward the other, to remedy the situation through c.; but since charity does not oblige under grave inconvenience, this obligation may readily cease to apply.

If, on the other hand, responsibility lies with only one of them, whether because that person simulated consent, induced the other party to marry through fear, or for any other reason, there is no doubt that he is bound in justice to convalidate the marriage if its dissolution would cause the other party irreparable harm. If, however, reparation for the injury can be made in another way, some hold that the guilty pseudo-spouse would nevertheless be bound to c., since the law extends its favors to the person who suffered the injury, not to the person who inflicted it; others disagree, because the obligation of reparation arises entirely from the injury inflicted, which, in the hypothesis, may be repaired in another way, even outside marriage.

D'Annibale agrees with the former view if the marriage has already been consummated, and with the latter in the contrary hypothesis (I. D'Annibale, Summula theologiae moralis, 5ª ed., III, Roma 1908, p. 414, n. 486).

During the period extending from the recognition of the invalidity of their marriage to its convalidation, the presumed spouses are in the condition of unmarried persons, and from this consideration all the norms governing their life during this transitional period must be derived.

a) If the marriage is certainly invalid and both presumed spouses are aware of its nullity, they must abstain from marital acts. If only one of them knows of it, that person must inform the other party; and if, for any reason, this is impossible, must seek a pretext for abstaining from conjugal acts. Nevertheless, if the woman were forced into such acts under grave threats, she could maintain a passive attitude, provided there were no danger of consent.

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

b) If the marriage is doubtfully valid, a distinction must be made: α) If the doubt is negative, it need not be taken into consideration; if it is positive and well founded, an investigation is required in order to discover the truth. During the investigation, if both are uncertain, they must abstain from acts proper to marriage, so as not to expose themselves to the danger of fornication; if only one of them doubts, that person may only submit passively to such acts, but may not take the initiative; β) If, once the investigation has been completed, the doubt remains, the marriage is to be considered valid even in the internal forum, by virtue of the well-known principle of the favor matrimonii (can. 1014): consequently, it is not necessary to have recourse to convalidation, and marital acts become licit.

At the moment of the convalidation of the marriage, the spouses must be in a state of grace, because the union then becomes a true marriage and, consequently, in the case of the faithful, a true Sacrament.