Convalidation

CONVALIDATION. - I. GENERAL NOTIONS. - It is a fact subsequent to a voidable juridical act, by which the latter loses that quality of its own, becoming perfect. For the protection of a determined interest the law may in fact prescribe that a juridical act be carried out with the use of certain forms or with the presence of certain requirements, in the sense that from the failure to observe such prescriptions there arises, for the person whose interest is to be protected, the right to seek the annulment of the act. When, however, the interest that the law wishes to defend suffers no injury, despite the non-observance of the required forms, the voidability no longer has any reason to exist, in which case one speaks of the harmlessness of the defect: and the evidence of such harmlessness is derived from an action or an omission of the person who could assert the voidability of the act.

Thus there is validation when the voluntary performance occurs of the obligation imposed by the defective act; when, once the defect that caused the voidability has ceased, there is confirmation or ratification on the part of the person in whose interest the voidability itself is established; when there is carried out that which the defective act was intended to bring about (appearance in court of the person summoned despite the nullity of the summons); when, finally, the time established by law for asserting the voidability is allowed to elapse.

It is disputed whether validation has retroactive effect; the opinion of those writers should, however, be deemed preferable who emphasize that, in general, the validity of the voidable act is not suspended until validation, but is full from the moment the act was performed, albeit conditioned upon the non-exercise of the action for annulment. Validation therefore removes only the possibility of destroying the effects of the act.

Normally validation is possible only for voidable acts, but it may also be applied to void acts when the law expressly provides for it (v. art. 1423 of the Italian Civil Code). And the validation of marriage in canon law is a typical example of validation of a void act.

II. OF MARRIAGE

The convalidation of a marriage is the act by which an invalid marriage is made valid.

It can in fact happen that an apparently valid marriage is in reality null, either because the capacity was lacking in the contracting parties, or because it was not contracted with the necessary consent, or because it was celebrated without the due form. In the face of such a marriage (since canon law does not know the notion of an annullable marriage, but only admits that it can be existing or non-existing) theoretically four remedies could be adopted: 1) cohabitation uti frater et soror; 2) dissimulation, that is, leaving the spouses in their good faith; 3) the declaration of nullity by the competent judge; 4) the convalidation of the marriage. However, cohabitation uti frater et soror is an entirely peculiar remedy, to be adopted only in cases that present exceptional conditions on the part of the two presumed spouses, otherwise it would produce for them a very dangerous situation and, in any case, as is obvious, it cannot be permitted if other remedies can be applied to the case; dissimulation presupposes first of all that the nullity is not notorious, that both spouses are in good faith (that is, that they have no doubts about the validity of their marriage) as well as the prudent foresight that, if they were given notice of the invalidity of the marriage, this could generate a worse evil (e.g., refusal on their part to convalidate the marriage, scandals, etc.); the declaration of nullity may be opportune when the marriage is incurable, or when the parties are irreconcilable, or if there is a danger of perversion for one party, or grave reasons induce the necessity of contracting another marriage. So that, in many cases, in the face of a null marriage, the ordinary path to be followed is the reintegration of the marriage, which can take place in one of two forms: either simple convalidation, or 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. As therefore, for the celebration of a valid marriage, there are required the suitability of the persons, the due consent, and the manifestation of this in the form required by law, so these elements are required for convalidation. This in practice will be obtained by bringing into being, at the moment of convalidation, that element or those elements that were lacking at the celebration. And since the marriage contract becomes existing only at the moment of convalidation - and, if the contracting parties are baptized (the question relating to the case of one party baptized and the other an unbeliever is omitted) the Sacrament is simultaneously formed - so 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 to whether the nullity of the marriage derives from a diriment impediment, from a defect of consent, or from a defect of form.

a) In the case of a marriage null by reason of a diriment impediment, the 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 aware of the impediment (can. 1133 § 1).

As regards the removal of the impediment, it is obvious to observe that, if it were a question of an insurmountable obstacle, that is, of a non-dispensable impediment (impediment of divine law) or one from which the Church, although able, does not dispense (e.g., the impediment of Holy Orders), the marriage could not be convalidated; if instead 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 cult), no act with respect to the impediment would be required on the part of the ecclesiastical authority, since the obstacle would no longer exist; the same is to be said if the impediment had ceased through the abrogation of the law (as happened, for some impediments, when the CIC came into force); if then the dispensable impediment, at the moment of convalidation, were still subsisting, the competent authority would intervene by granting the dispensation, with which the capacity of the persons for marriage would be attained.

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 proven revocation, can. 1093), nothing would of itself prevent the marriage, from the moment of the removal of the impediment, from being regarded as a true and valid marriage. However, by positive disposition, such consent given by the spouses when the impediment existed, although it is naturally valid and persevering, has no juridical efficacy, and the conjugal bond does not arise except through a new act of will given by both spouses, or at least by the party now aware of the impediment, by which it is intended to consent anew to the marriage while knowing of its nullity (cann. 1133-34). But both the necessity of renewing consent and the necessity of precise knowledge relating to the nullity of the marriage, being elements required by canon law alone (so declares the CIC at can. 1133 § 2, resolving a previously disputed question), cannot be applied to a marriage contracted by non-baptized persons, which, from the moment of the cessation or removal of the impediment, that is, of the cause of the invalidity, must be held valid without any need of renewal of consent, saving, of course, a different disposition of the civil legislator.

As regards then the form in which the renewal of consent must be made, it is one thing to proceed if the impediment removed was public (whether by its nature, or because it was known to at least two persons who could give proof in the external forum), and another if it was 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 evident, 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 to say publicly before the parish priest and witnesses; a less solemn form being also admitted when it is a question of extraordinary cases (can. 1098) or of contracting parties who are not subject to the ecclesiastical law on 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 will be sufficient that consent be renewed by both parties, even in a completely private and secret form (can. 1135 § 2); if then it was occult and known to only one party, it will be sufficient that the party aware of the impediment renew consent privatim et secreto without any need to inform the other party, provided, however, that this party perseveres in the consent given at the time (can. 1135 § 3).

b) If the marriage is null for lack or defect of consent, it is necessary: α) that the cause that generated the defect of consent cease (error, metus, etc.); β) that the parties or the party know that the marriage is null; γ) that an efficacious consent be given.

If the defect of consent is on the part of both parties, it is necessary that both give a true consent; if on the part of one alone, it is necessary that this one consent, provided that the consent given by the other party still subsists (can. 1136 § 1).

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

If, on the other hand, the defect of consent also appears in the external forum, a valid consent must be manifested in the external forum: therefore, if the defect was external and public, a new celebration in public form is required; if it was external and occult, it is sufficient that the consent be manifested in a private and secret manner (can. 1136 §§ 1-2).

c) In the case of a marriage null for defect of form (because it was celebrated with a total defect of form, or with insufficient form), the convalidation is brought about by a new celebration in legitimate form (can. 1137), although it remains within the power of the Ordinary — for a just cause — to dispense from the public form and to permit the parish priest to adopt a more reserved or less solemn form.

2. Sanatio in radice

There occur cases in which the application of the form set out thus far to a null marriage becomes impossible, whether because the party or parties would refuse to lend the necessary cooperation for the renewal of consent or of the form, or because it is desired that the juridical effects, instead of taking effect from the moment of convalidation, should begin at an earlier period. In such a case there remains only the application of an altogether extraordinary means, called sanatio in radice.

For the history of this institution, it is to be noted that, although it cannot be said when the supreme pontiffs began to sanate in radice, nevertheless the concessions made by Boniface VIII for the marriage of Queen Maria and Sancho, 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 the sanatio was made by Giovanni d'Andrea (d. 1308), but the fundamental elements on which it is based were applied by Clement V (1305-1314) in the matter of benefices. Subsequently there are reports, related by Benedict XIV, of many other concessions made by Gregory XIII, Clement IX and Clement XII. The application of the sanatio in the course of time became ever more frequent and not only for particular marriages, but also by collective measures for all the marriages of certain dioceses or even regions, granted on the occasion of religious pacifications or changes of legislation in order to resolve particular situations: thus famous are the sanctions granted by Julius III (1554) for England, by Clement VIII (1595) for the Greeks, by Pius VII (1801-1809) for France, by Pius IX (1856) for Austria, by Leo XIII (1892) for marriages celebrated by heretics without observing the form established by the Church, by Pius X (1906) for the German Empire, later extended to Hungary (1909) and then to the whole Church (1912).

Can. 1138 § 1 expressly declares that the sanatio in radice consists in the convalidation of the marriage, which carries with it: a) the dispensation from or cessation of the impediment that caused the nullity; b) the dispensation from the obligation of renewing consent; c) the retrotractio, per fictionem iuris, circa effectus canonicos, ad praeteritum; which last phrase clearly expresses that it is only the canonical effects that, as is said, begin ex tunc (that is, they are referred back to the time of the celebration of the marriage, as if this had been valid), whereas the existence of the marriage contract, and, if it is a question of baptized persons, of the Sacrament, cannot begin except ex nunc, that is, from the convalidation itself, inasmuch as in this matter no fictio iuris could be configured (can. 1138 § 2); sometimes, however, the retroactivity of the effects is limited to an intermediate time, rather than being made to go back to the moment of the celebration.

The juridical foundation of the sanatio in radice is the following. If a law forbids marriage under penalty of nullity, that consent of the parties which, of itself naturally efficacious, would give rise to the marriage bond, precisely because of such a prohibition becomes juridically ineffective. But such a prohibition can be removed by the legislator himself, since it is a purely human norm: which is precisely what happens with the dispensation from the impediment. And this having been done, having regard to natural law alone, that naturally efficacious consent given by the contracting parties would become generative of the marriage bond if, as was said above, a canonical law did not require the renewal of consent. Now, with the sanatio in radice the legislator derogates from all the norms of the canonical law, and then nothing stands in the way of a naturally valid consent displaying its full efficacy. In this way the Church, juridically, considers the marriage valid ex tunc, for all canonical effects: that is, it feigns that the dispensation intervened from the time of the 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 existed. Therefore all the effects of the invalidating law are considered as abrogated for the past.

If, moreover, the cause of the nullity of the marriage should cease ex se, in the sanatio in radice there would be another fiction of law, inasmuch as it would retroact the removal of such a cause to the time of the celebration, referring all the juridical effects back to that date. From these elements it is clearly seen how the sanatio in radice differs from simple convalidation. The latter has consequences only for the future, produces no effects as regards the legitimacy of offspring born previously (but can produce only their legitimation), requires the cooperation of the spouses in order to renew consent and for the celebration in due form; the former, on the other hand, goes back to the moment of the celebration of the marriage, the children born are held as procreated during a valid marriage, it requires no cooperation on the part of the contracting parties inasmuch as it holds as valid the consent previously manifested, and the whole is produced by means of a single act of dispensation of the competent authority.

If all the elements, of which mention has been made, comprised in can. 1138 § 1, have intervened in the sanatio of a given marriage, doctrine is accustomed to say that it is a case of sanatio perfecta, whereas when not all the aforesaid elements concur (for example, if the dispensation from the impediment were retroacted not to the moment of the celebration, but to a later date, or if one party were disposed to renew consent) one speaks of sanatio imperfecta.

The essential conditions for the sanatio in radice to be applicable are the following: a) that the marriage be invalid by reason of an impediment of canonical law, from which the Holy See dispenses, or by defect of form. If in fact it were a question of an impediment of divine law the Church could not dispense; and if such an impediment, in a period subsequent to the celebration, had ceased, the Church, although able to do so, is not accustomed, even from that moment, to grant the sanatio in radice (can. 1139

§ 2); β) that the consent given at the celebration be a natural consent, valid and only juridically ineffective because of the obstacle arising from a canonical impediment or from a defect of form (can. 1139 § 1). This is truly the root that is healed: if it did not exist, one could not speak of sanatio. It is required, in other words, that the consent have been truly marital on the part of both spouses (if one party had not given such consent, it could not be healed at the root, because the consent of the parties can in no way be supplied), which can very well occur 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 the celebration. But if consent was lacking at the celebration, yet was given at a later time — for it is indeed possible that upon a fornication or concubinage there has subsequently been grafted a marital will through an exchange of private consent — the sanatio could be applied from the moment the consent was given (can. 1140 § 2); γ) it is further required that the consent persevere, that is, that it persist at the time of the sanatio, which is always presumed when it has previously been given (can. 1093); indeed it is not presumed revoked even though the spouses live in disagreement, or were ready to separate or to seek the nullity of the marriage (the interpretative will is, in fact, irrelevant), or even had in fact or by sentence obtained legal separation.

As can be seen from the set of conditions required for the sanatio to be carried out, it is not necessary that there be a species vel figura matrimonii, as might seem to be gathered from the very wording of can. 1139 § 1: Quodlibet matrimonium; therefore even in civil marriage the existence of marital consent is presumed; indeed it might be said that even a simple convivencia mare uxorio could give rise to a presumption of sufficient marital consent in those countries where, according to civil law and custom, a given form for marriage was not required; δ) 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 fitting to apply simple c.; for example, if one party could not be warned about the invalidity of his marriage, or if he refuses to renew consent, or if the nullity had been brought about through the fault or negligence of the parish priest or the Ordinary.

Among the requirements needed for the sanatio there is neither that of the will nor that of the knowledge of the parties (can. 1138 § 3). And this principle receives its justification from the fact that the dispensation is nothing other than a relaxatio legis, which can very well be granted by the legislator without the consent of the subject, indeed against the will of the parties (for example, in sanations in globo).

It is also possible that neither of the two spouses be informed of the sanatio that has taken place: for example, in the case where the spouses did not know of the nullity, or if from the revelation harm or scandal were feared: indeed it could even be applied in the case where one of the parties had predeceased, or again when both parties had died, as regards the juridical effects (but in that case one would not properly speak of sanatio), and it would likewise be possible when one of the spouses had become of unsound mind.

The authority competent to grant the sanatio is the Holy See (can. 1141). That the supreme pontiff has such power follows from the fact that both the two dispensations contained in the sanatio and the retroactivity as to effects are nothing other than derogations from purely ecclesiastical laws; that it is then reserved to the supreme pontiff is a consequence of the dispensation, which concerns the universal laws of the Church. In the ordinary course the pope, in healing at the root, avails himself of the Sacred Penitentiary for the internal forum; for the external forum, of the Sacred Congregation of the Holy Office when it is a case in which the impediment of disparity of cult is present or one party is non-Catholic; of the Sacred Congregation for the Oriental Church if one or both parties are Eastern; of the Sacred Congregation de Propaganda fide if the parties were residing in territory subject to it; in every other case, of the Sacred Congregation for the Discipline of the Sacraments. Naturally, since it is a faculty belonging to the Holy See, Ordinaries and other subjects can be invested with it by delegation.

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

Giacomo Violardo

III. MORAL OBLIGATIONS.

1. Obligations of the confessor and the parish priest

The dissolution of marital unions, even if radically vitiated, does not take place without great inconveniences. To avoid these, pastors and directors of souls must do all they can to arrive at the c. of marriages under the form, as the case may be, either of simple c. or of sanatio in radice: the parish priest is bound to this by a duty of office, the confessor by a duty of charity.

2. Obligations of the spouses

And are the spouses bound to convalidate their marriage? It must first be seen whether the nullity of the marriage is imputable to both spouses, to one only, or to neither of the two. If the responsibility is common or does not exist, there exists only an obligation of charity in the spouses, of one toward the other, to remedy it by c.; but since charity does not oblige at grave inconvenience, this obligation can easily come to fall away.

If, on the other hand, the responsibility is that of one only, whether because he simulated or because he induced the other party to the marriage by fear or for any other reason, there is no doubt that he is bound by justice to convalidate the marriage, whenever from its dissolution irremediable harms would come to the other party. If, however, the reparation of the injury can take place in another way, according to some the guilty pseudo-spouse would nonetheless be bound to the c., since the law lends its favors to the one who has suffered the injury, not to the one who commits it; according to others, no, because the obligation of reparation springs entirely from the injury done, which in hypothesis can be repaired otherwise, even outside of marriage.

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

In the period that runs from the ascertainment of the invalidity of one's own marriage until the convalidation, the presumed spouses find themselves in the condition of unmarried persons, and from this consideration all the norms for regulating their life during the transitional period must be drawn.

a) If the marriage is certainly invalid and both presumed spouses know of the nullity, they must abstain from marital acts. If only one of them is aware of it, he must inform the other party, and if for any reason he cannot do so, he must seek a pretext to abstain from conjugal acts. However, if the woman were forced to these acts under grave threats, she could remain in a passive attitude, provided there is no danger of consent.

Indeed, if the marriage were null by reason of some impediment of ecclesiastical law, some authors say that in this case of most 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 convalidated without further ado (cf. A. Lehmkuhl, Theologia moralis, 2nd ed., Freiburg 1910, n. 1053).

b) If the marriage is doubtfully valid, a distinction must be made: α) If the doubt is negative, it is not to be taken into consideration; if it is positive and well-founded, an investigation is needed to discover the truth. During the investigation, if both are uncertain, they must abstain from the acts proper to marriage, so as not to expose themselves to the danger of fornication; if only one doubts, he may only lend himself passively to the acts, but he cannot take the initiative; β) If, once the investigation has been carried out, the doubt remains, the marriage is to be considered valid even in the internal forum by the well-known principle of favor matrimonii (can. 1014): consequently there is no need to have recourse to convalidation, and marital acts become lawful.

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

Pietro Palazzini