VATIAN II affirmed that it is through the liturgy or the public worship of the Church that “the work of our redemption is exercised” and that the liturgy is “the outstanding means by which the faithful can express in their lives and manifest to others the mystery of Christ and the real nature of the Church” (SC, n.2). Therefore, the Council concludes, “the liturgy is the summit toward which the activity of the Church is directed; at the same time it is the fountain from which all her powers flow” (SC, n.10). After the liturgically-rich celebration of Holy Week, and in the pageantry of the Marian month of May, it is timely to consider once more the reality of Church Law and the regulation of liturgical celebrations.
What is Liturgy?
a. Canonical Definition of Liturgy
The Code of Canon Law gives a working definition of sacred liturgy in c.834, which states: §1. The Church fulfills its office of sanctifying in a special way in the sacred liturgy, which is indeed the exercise of the priestly office of Jesus Christ; in it through sensible signs the sanctification of humankind is signified and effected in a manner proper to each of the signs and the whole of the public worship of God is carried on by the mystical Body of Jesus Christ, that is, by the Head and the members.
§2. This worship takes place when it is carried out in the name of the Church by persons lawfully deputed and through acts approved by the authority of the Church.
b. Essential Elements of Liturgical Actions
From the above, the following essential elements of a liturgical action can be deduced, the last three of which being veritable canonical requirements:
1) An exercise of the priestly office of Jesus Christ—which is a fundamental element of the liturgy. Thus, when a priest consecrates the Eucharist, Christ is present in the person of the minister; when the confessor absolves, it is Christ who forgives sins; even when an ordinary faithful baptizes, it is Christ who baptizes.
2) The use of sensible signs, which both signify and effect the sanctification of mankind. In this regard, it is important to comment that the liturgical sign should keep close relation with the sanctification that it signifies (to the exclusion of the vulgar and the inane).
3) The public worship of God is carried out by the whole Mystical Body—i.e., it is offered in the name of the Church. Thus, c.837, §1 states: Liturgical actions are not private actions but celebrations of the Church itself, which is “the sacrament of unity”…therefore liturgical actions pertain to the whole body of the Church and manifest and affect it…. Every liturgical act is never just a private act of an individual, but constitutes the culminating moment when the whole Church renders public and complete worship to God.
4) The actions are approved by the authority of the Church. Thus, c.846 explicitly establishes:
§1. The liturgical books approved by the competent authority are to be faithfully observed in the celebration of the sacraments; therefore no one on personal authority may add, remove or change anything in them.
§2. The ministers are to celebrate the sacraments according to their own rite.
5) The actions are carried out by persons lawfully deputed—a deputation that is different, as previously mentioned, from that enjoyed by all the faithful by virtue of baptism, which is a sharing in the common priesthood mentioned in c.836 and described by Vatican II.
Canon Law and Sacred Liturgy
a. Place of Liturgical Norms in Canon Law
The greater systematic autonomy given to liturgico-sacramental norms in the present Code shows, on the one hand, the deeper understanding of the munera Ecclesiae as a reflection and participation in the munera Christi. In effect, the munus docendi and the munus sanctificandi are the two great functions of the Church at the service of which is the munus regendi. Such a systematic emphasis on the canonical discipline of sacred liturgy shows an acknowledgment of the insufficiency of the proclamation of the Word of God alone. The Church also has the fundamental mission of carrying out the salvation that it proclaims “through the sacrifice and the sacraments around which revolves the whole liturgical life” (SC, 6).
On the other hand, the internal structure of Book IV of the CIC also reflects the liturgical renewal of Vatican II. One can recall that the arrangement of the CIC 17 was: sacraments, sacred places and times, divine worship. In other words, worship was separated from sacramental activity. The present Code, in contrast, starts from the doctrinal principle that liturgy—at the center of which are the sacraments—is simultaneously an act of worship and an act of sanctification: through it “God is perfectly glorified and men are sanctified” (SC, 7).
Finally, we have to address the anti-juridicist objection against the very notion of liturgical norms. A recent Instruction from the Congregation for Divine Worship resolves this issue by pointing out that the finality of the liturgical norm is not only to avoid errors, but above all and precisely to unify efforts in the transmission of the truth. In this regard, the liturgical norm finds its reason in the double quality of any liturgical act—i.e., they are public (of the community, of the Church), and they express the faith.
b. Principles of Liturgical Law
Liturgical actions are not private actions but are celebrations of the whole Church—i.e., the People of God united and ordered under the guidance of the bishops. This public character of liturgical actions, as well as their intimate connection with the principles of the Faith, constitute the ratio legis on which is based the exclusive competence of the ecclesiastical authority in the regulation of all matters regarding the liturgy.
1) Principle of Substantial Unity. This principle is premised on the distinction between changeable and unchangeable (immutable) elements of the liturgy: immutable elements are those which depend on the foundational will of Christ—e.g., the substance of the sacraments and whatever is more directly related to that substance; changeable elements are those which do not belong or are not directly related to the substance of the sacraments.
The principle is enunciated as follows: “By virtue of its pastoral authority, [the Church] can ordain what may be useful for the good of the faithful, according to the circumstances, times and places. But it does not have any power to change what pertains to the will of Christ, which is what constitutes the immutable part of the Liturgy.”
The basis of this principle is three-fold:
1º The liturgy belongs to the public patrimony of the entire Church, and should therefore be subject to the regulation only of the capital offices. Thus, the Council had categorically declared that “no other person, not even a priest, may add, remove, or change anything in the liturgy on his own authority” (SC).
2º The liturgy is the principal factor for ecclesial communion. Thus, any arbitrariness in its celebration implies a rupture of this ecclesial communion and must therefore be avoided.
3º Lex orandi, lex credendi. The liturgy is closely linked to the deposit of faith. Hence, any laxity in liturgical discipline is at the same time effect and cause of important dogmatic errors.
2) Principle of Centralization. This reinforces the previous principle, and is contained in c.838:
—§1. The supervision of the sacred liturgy depends solely on the authority of the Church, which resides in the Apostolic See and, in accord with the law, the diocesan bishop (c.838, §1).
—§2. It is for the Apostolic See to order the sacred liturgy of the universal Church, to publish the liturgical books, to review their translations into the vernacular languages and to see that liturgical ordinances are faithfully observed everywhere.
Thus, the following are reserved to the Holy See:
1º All that refers to the validity of the sacraments (c.841).
2º All that refers to the licitud of the sacraments the regulation of which the Holy See has not decentralized to the Episcopal Conferences and to the diocesan Bishops.
3º The edition of liturgical books (c.383, 2).
4º Recognition of versions of liturgical books in the vernacular (c.383, 2).
5º Vigilance over the fulfillment of the universal liturgical norms everywhere (c.383, 2).
3) Principle of Liturgical Elasticity: Inculturation. A complementary principle underlies the fact that the rituals in force do not impose uniformity, but rather permits the use of different forms for celebrating, which are expressions of the richness of the liturgy of the Church. They are at the service of the pastoral function of the liturgy of stimulating and increasing the sense of Christ among the faithful (cf. IGMR, n.313).
A particular application of this principle is what has come to be known as inculturation—i.e., the incidence of the different cultures of peoples in whatever is fitting to better express the inexhaustible riches of Christ, provided that it is compatible with the Gospel and does not contradict ecclesial communion.
A different matter is the exaggerated adaptation of the liturgical norms to more specific and even simply personal circumstances—e.g., not to wear all the vestments for Mass on a warm day—under the guise of a misunderstood principle of contextualization. The Holy See has made such “experimentation impossible, unless it counts with the expressed authorization of the Holy See”.
4) Principle of Decentralization. The ecclesiology of Vatican II, which re-emphasized the particular Churches and the dignity of the diocesan Bishops, opened a wide margin for Particular Law in the matter of liturgy. Thus, after establishing the aforementioned principles, the rest of c.838 enumerates the different competencies, corresponding to the need for a certain plurality of liturgical forms, in accordance with the different mentalities and traditions of different peoples (cf. SC, 37-39). This is channeled through:
a) Primarily the Episcopal Conferences: It pertains to the conferences of bishops to prepare translations of the liturgical books into the vernacular languages, with the appropriate adaptations within the limits defined in the liturgical books themselves, and to publish them with the prior review by the Holy See (c.838, §3). The Instruction Varietates legitimae gave further indications on the ambit of this power of the Episcopal Conference and the procedure for its exercise (nn.55 & 66-67).
b) Secondarily the Diocesan Bishop: It pertains to the diocesan bishop in the church entrusted to him, within the limits of his competence, to issue liturgical norms by which all are bound.(c.838, §4).
5) Principle of Full and Active Participation of the Faithful. Of less juridic impact than the foregoing principles is one which is latent in the whole liturgical renewal ushered in by Vatican II, and that is the desire for the full and active participation of all the faithful in the liturgy, each one according to his state and condition.
Conclusion
John Paul II expressed all these ideas in a conference regarding the implementation of the Second Vatican Council: “The Constitution Sacrosanctum Concilium explained the premises of a liturgical life that would give God the true worship owed him by the people called to exercise the priesthood of the New Covenant. The liturgy must allow every member of the faithful to enter deeply into the mystery to grasp the beauty of praising the Triune God. The liturgy, in fact, is an anticipation on earth of the praise that the hosts of the blessed give God in heaven. At every liturgical celebration, therefore, the participants should be given the possibility of a foretaste, albeit under the veil of faith, of some of the sweetness that will flow from contemplating God in paradise. For this reason, every minister, conscious of the responsibility he has to all the people entrusted to him, must faithfully maintain respect for the sacredness of the rite and grow in his understanding of what he celebrates.”
Saturday, April 24, 2010
Wednesday, April 14, 2010
Catholic associations and partisan politics
It is an election year once more, and an old question has again come to the fore: the involvement of the Church in politics. Granting that the Hierarchy itself should not be involved in partisan politics, the following questions have been asked: 1) Can Associations of Christian Faithful—either Public or Private—engage in partisan politics? 2) If Public Associations of Christian Faithful cannot engage in partisan politics, can Private Associations of Christian Faithful do?
THIS is indeed a thorny issue that has been discussed in ecclesiastical circles repeatedly. What is novel is the way it is being asked now. The concrete application is of course quite obvious: Can the Couples for Christ or the Knights of Columbus—for example—issue a mandate for its members to push for the candidacy of a specific person or party? The pertinent provisions of Canon Law on this issue can be summarized as follows.
1. Existence & Nature of Associations of Christian Faithful
In the Church there are associations distinct from institutes of consecrated life and societies of apostolic life, in which the Christian faithful, either clergy or laity, or clergy and laity together, strive by common effort to promote a more perfect life, or to foster public worship or Christian doctrine, or to exercise other apostolic works, namely to engage in efforts of evangelization, to exercise works of piety or charity and to animate the temporal order with the Christian spirit (c.298, §1).
2. There are Two Kinds of Associations of Christian Faithful:
a) Private Associations. Can.299: §1. The Christian faithful are free, by means of a private agreement made among themselves, to establish associations to attain the aims mentioned in c.298, §1, with due regard for the prescriptions of c.301, §1.
§2. Such associations are called private associations even though they are praised or recommended by ecclesiastical authority.
§3. No private association of the Christian faithful in the Church is recognized unless its statutes are reviewed by competent authority.
b) Public Associations. Can.301: §1. Competent ecclesiastical authority alone has the right to erect associations of the Christian faithful which set out to teach Christian doctrine in the name of the Church or to promote public worship or which aim at other ends whose pursuit by their nature is reserved to the same ecclesiastical authority.
§2. Competent ecclesiastical authority, if it judges it expedient, can also erect associations of the Christian faithful in order to attain directly or indirectly other spiritual ends whose accomplishment has not been sufficiently provided for by the efforts of private persons.
§3. Associations of the Christian faithful which are erected by competent ecclesiastical authority are called public associations.
The distinction between public and private associations of faithful, therefore, stems neither from the nature of their ends, nor even from the degree of supervision or control of the competent ecclesiastical authority over their actuations, but rather in the way do they come about:
— Public associations of faithful are erected by the competent ecclesiastical authority.
— Private associations of faithful are established by mutual agreement of private individuals, and then praised, recommended or recognized by the competent ecclesiastical authority after reviewing their statutes.
3. Autonomy of Associations of Christian Faithful
The Code of Canon Law is quite clear in stating the sphere of autonomy of such associations of Christian faithful:
a) Public Associations: Can. 315. Public associations on their own initiative can begin undertakings in keeping with their character, and they can direct them in accord with their statutes, but under the further direction of the ecclesiastical authority mentioned in c.312, §1.
b) Private Associations: Can. 321. The Christian faithful guide and direct private associations according to the prescriptions of their statutes.
Such autonomy, therefore, is not absolute, as provided by c.232:
§1. Although private associations of the Christian faithful enjoy autonomy in accord with the norm of c.321, they are subject to the vigilance of ecclesiastical authority in accord with the norm of c.305, and are subject to the governance of the same authority.
§2. It is also the responsibility of ecclesiastical authority, while observing the autonomy
proper to private associations, to be watchful and take care that their energies are not dissipated and that their exercise of their apostolate is ordered toward the common good.
The aims of associations of faithful have to be not only consistent with but also relevant to the fundamental pretension of the Ecclesiastical Juridic Ordering: the salvation of souls. Can.298, §1 specifies this when it establishes that the faithful in such associations strive by common effort: (i.e., individually they can freely do other things on their own)
• to promote a more perfect life;
• to foster public worship or Christian doctrine;
• to engage in efforts of evangelization;
• to exercise works of piety or charity and
• to animate the temporal order with the Christian spirit.
4. Can associations of Christian faithful engage in partisan politics?
The point may be raised that engaging in partisan politics might fall under the heading of the canonically recognized aim of Associations of Christian faithful to animate the temporal order with the Christian spirit (c.298, §1). After all, such evangelizing action is indeed what is proper of the Church as a whole, and more specifically of its lay faithful.
However, such an interpretation would unduly compromise a fundamental right of every Catholic faithful—autonomy in temporal affairs—laid down in c.227: Lay Christian faithful have the right to have recognized that freedom in the affairs of the earthly city which belongs to all citizens; when they exercise such freedom, however, they are to take care that their actions are imbued with the spirit of the gospel and take into account the doctrine set forth by the magisterium of the Church; but they are to avoid proposing their own opinion as the teaching of the Church in questions which are open to various opinions.
In effect, every Christian faithful—but most especially a Catholic layman—has the right to engage in partisan politics, without such right being limited by the Ecclesiastical juridic ordering, except in accord with c.227.
If an Association of Christian Faithful were as a body to engage in partisan politics, then the corporate position would unduly infringe on the individual right of the members of the said association to maintain their own partisan political orientation. In other words, if an Association of Christian Faithful were to have an official position as regards partisan politics, then its members would have to toe that line; hence, the individual members would not have the freedom to follow their own party leanings, if they are to remain in good graces within the Association. This would be tantamount to the Association, proposing their own opinion as the teaching of the Church in questions which are open to various opinions (c.227).
Conclusion
The right of the individual Christian layman to autonomy in temporal matters (including partisan politics) is recognized in the Canonical Order. Such a right is as fundamental as the Right to Religious Freedom of the citizen under the Law of the State.
In other words, just as it would be unjust for a State institution to actively promote a purely religious position, it also would be equally unjust for an Ecclesiastical institution (e.g., Association of Faithful, whether public or private) to corporately foster a specific political partisan position.
This is the reason why after all these years the Catholic Church has always resisted resorting to what others have touted as the Catholic vote.
(This article originally appeared on The CBCP Monitor, Vol.11, No.5, March 5-18, 2007.)
THIS is indeed a thorny issue that has been discussed in ecclesiastical circles repeatedly. What is novel is the way it is being asked now. The concrete application is of course quite obvious: Can the Couples for Christ or the Knights of Columbus—for example—issue a mandate for its members to push for the candidacy of a specific person or party? The pertinent provisions of Canon Law on this issue can be summarized as follows.
1. Existence & Nature of Associations of Christian Faithful
In the Church there are associations distinct from institutes of consecrated life and societies of apostolic life, in which the Christian faithful, either clergy or laity, or clergy and laity together, strive by common effort to promote a more perfect life, or to foster public worship or Christian doctrine, or to exercise other apostolic works, namely to engage in efforts of evangelization, to exercise works of piety or charity and to animate the temporal order with the Christian spirit (c.298, §1).
2. There are Two Kinds of Associations of Christian Faithful:
a) Private Associations. Can.299: §1. The Christian faithful are free, by means of a private agreement made among themselves, to establish associations to attain the aims mentioned in c.298, §1, with due regard for the prescriptions of c.301, §1.
§2. Such associations are called private associations even though they are praised or recommended by ecclesiastical authority.
§3. No private association of the Christian faithful in the Church is recognized unless its statutes are reviewed by competent authority.
b) Public Associations. Can.301: §1. Competent ecclesiastical authority alone has the right to erect associations of the Christian faithful which set out to teach Christian doctrine in the name of the Church or to promote public worship or which aim at other ends whose pursuit by their nature is reserved to the same ecclesiastical authority.
§2. Competent ecclesiastical authority, if it judges it expedient, can also erect associations of the Christian faithful in order to attain directly or indirectly other spiritual ends whose accomplishment has not been sufficiently provided for by the efforts of private persons.
§3. Associations of the Christian faithful which are erected by competent ecclesiastical authority are called public associations.
The distinction between public and private associations of faithful, therefore, stems neither from the nature of their ends, nor even from the degree of supervision or control of the competent ecclesiastical authority over their actuations, but rather in the way do they come about:
— Public associations of faithful are erected by the competent ecclesiastical authority.
— Private associations of faithful are established by mutual agreement of private individuals, and then praised, recommended or recognized by the competent ecclesiastical authority after reviewing their statutes.
3. Autonomy of Associations of Christian Faithful
The Code of Canon Law is quite clear in stating the sphere of autonomy of such associations of Christian faithful:
a) Public Associations: Can. 315. Public associations on their own initiative can begin undertakings in keeping with their character, and they can direct them in accord with their statutes, but under the further direction of the ecclesiastical authority mentioned in c.312, §1.
b) Private Associations: Can. 321. The Christian faithful guide and direct private associations according to the prescriptions of their statutes.
Such autonomy, therefore, is not absolute, as provided by c.232:
§1. Although private associations of the Christian faithful enjoy autonomy in accord with the norm of c.321, they are subject to the vigilance of ecclesiastical authority in accord with the norm of c.305, and are subject to the governance of the same authority.
§2. It is also the responsibility of ecclesiastical authority, while observing the autonomy
proper to private associations, to be watchful and take care that their energies are not dissipated and that their exercise of their apostolate is ordered toward the common good.
The aims of associations of faithful have to be not only consistent with but also relevant to the fundamental pretension of the Ecclesiastical Juridic Ordering: the salvation of souls. Can.298, §1 specifies this when it establishes that the faithful in such associations strive by common effort: (i.e., individually they can freely do other things on their own)
• to promote a more perfect life;
• to foster public worship or Christian doctrine;
• to engage in efforts of evangelization;
• to exercise works of piety or charity and
• to animate the temporal order with the Christian spirit.
4. Can associations of Christian faithful engage in partisan politics?
The point may be raised that engaging in partisan politics might fall under the heading of the canonically recognized aim of Associations of Christian faithful to animate the temporal order with the Christian spirit (c.298, §1). After all, such evangelizing action is indeed what is proper of the Church as a whole, and more specifically of its lay faithful.
However, such an interpretation would unduly compromise a fundamental right of every Catholic faithful—autonomy in temporal affairs—laid down in c.227: Lay Christian faithful have the right to have recognized that freedom in the affairs of the earthly city which belongs to all citizens; when they exercise such freedom, however, they are to take care that their actions are imbued with the spirit of the gospel and take into account the doctrine set forth by the magisterium of the Church; but they are to avoid proposing their own opinion as the teaching of the Church in questions which are open to various opinions.
In effect, every Christian faithful—but most especially a Catholic layman—has the right to engage in partisan politics, without such right being limited by the Ecclesiastical juridic ordering, except in accord with c.227.
If an Association of Christian Faithful were as a body to engage in partisan politics, then the corporate position would unduly infringe on the individual right of the members of the said association to maintain their own partisan political orientation. In other words, if an Association of Christian Faithful were to have an official position as regards partisan politics, then its members would have to toe that line; hence, the individual members would not have the freedom to follow their own party leanings, if they are to remain in good graces within the Association. This would be tantamount to the Association, proposing their own opinion as the teaching of the Church in questions which are open to various opinions (c.227).
Conclusion
The right of the individual Christian layman to autonomy in temporal matters (including partisan politics) is recognized in the Canonical Order. Such a right is as fundamental as the Right to Religious Freedom of the citizen under the Law of the State.
In other words, just as it would be unjust for a State institution to actively promote a purely religious position, it also would be equally unjust for an Ecclesiastical institution (e.g., Association of Faithful, whether public or private) to corporately foster a specific political partisan position.
This is the reason why after all these years the Catholic Church has always resisted resorting to what others have touted as the Catholic vote.
(This article originally appeared on The CBCP Monitor, Vol.11, No.5, March 5-18, 2007.)
Sunday, April 11, 2010
Convalidation of a Canonical Marriage
ROBERT and Lydia contracted canonical marriage 26 years ago and they have several children, the youngest being 17 years old. Although he had had almost no Christian formation in the past, Robert of late has been attending days of recollection, where he becomes a good friend of Fr. Justin.
On one of these occasions, Robert tells Fr. Justin his life's story. Among other things, he says that when he got married he was not yet baptized. He had been born in another country, in a very poor neighborhood where there was only a provisional church─subsequently destroyed─with a young parish priest. During the canonical interview prior to marriage, the priest had gone over the paperwork hurriedly without asking him if he was baptized and Robert didn't say anything either. After three years, Robert and Lydia immigrated with the whole family to the country where they now are. At that time, fearing that he may have done wrong previously, he got baptized without telling his wife who did not know anything in this regard.
Robert reveals these circumstances only because Fr. Justin pulled his tongue, since he himself does not think that there was anything irregular and had been living peacefully since being baptized. His only worry was that since two years ago there have been some marital quarrels: nothing serious, but his wife is frequently in a bad mood, answers bitterly and─since the children had grown up─had talked about the two of them going back to their country of origin.
Fr. Justin realizes that the marriage of Robert and Lydia was invalid due to the impediment of disparity of cult. Nevertheless, fearing a possible break-up of the family otherwise and not knowing well how to proceed, he does not say anything in this regard. At the moment he limits himself to counseling Robert on other aspects of his Christian life, and makes an appointment with him for another conversation.
Upon studying cc. 1156-1164 of the Codex, Fr. Justin initially thinks that a radical sanation was not possible, since the impediment that needed dispensation had disappeared, and he considers how to effect a convalidation with a renewal of matrimonial consent. This scenario worries him, thinking that problems hitherto absent─since Robert and Lydia obviously consider themselves man and wife─could arise. He therefore consults a priest friend, Fr.Benedict─an expert in Matrimonial Law─narrating the case to him in abstract terms. Fr.Benedict explains to him that a radical sanation was possible, even without the knowledge of either or both parties, and this could be granted by the Bishop of the diocese of the couple.
Fr. Justin directs himself to the Bishop, who─upon knowing the persistence of matrimonial consent in Robert and Lydia─decides to grant the sanatio. Furthermore, considering that the couple were immigrants from a country of a very different culture and their other circumstances, he deems that there is a serious cause in order to grant such sanatio without previous notification of the parties, in accordance with c.1164.
In the next conversation with Robert, Fr. Justin talks to him about his marriage in order to strengthen it. He tells him that since he and Lydia were married before God and the Church, they count on all the divine help in order to surmount all difficulties, and that all these depend in great part on him: his prayer, his dedication to his family over whatever egoism, his effort to understand Lydia and make her happy, etc.
Did Fr. Justin act correctly?
1. Preliminary review of canonical doctrine on marriage
a. Three elements are necessary for the validity of a canonical marriage:
1) Juridical capacity to marry: In principle all faithful have the ius connubi, unless the Law denies it due to a personal condition (diriment impediment).
2) Matrimonial consent: A human act that can be undermined by factors affecting the intellect or the will of the contractant.
3) Canonical form: A purely canonical convention, which in principle should not be defective since the marriage is contracted before a qualified witness (bishop, priest or deacon) who precisely is tasked to make sure that this form is observed.
b) The nullity of a marriage usually stems from a defect in either of the first two elements above at the time of its celebration. The Code provides two methods for making good─synonymously called validation or convalidation─marriages that are null due to a defect in capacity or a defect in consent.
c) A marriage that is null due to defect of form cannot be a case for simple convalidation. Consequently, the code provides for a new celebration of marriage─i.e., it must be contracted anew in the canonical form (c.1160), without prejudice to a dispensation from such form in special cases (c.1127, §2).
2. Simple convalidation consists in the renewal of marriage consent by one or both parties, after the reason for nullity─either a diriment impediment or a defect of consent─has ceased, without the need to observe again the canonical form ad validitatem. There are two possible scenarios:
a. If the reason for nullity was a diriment impediment, there are two requisites for convalidation (c.1156, §1):
1) Cessation of the impediment, either by dispensation or by facts that make it disappear (e.g., reaching legal age, death of previous spouse).
2) Renewal of consent by either or both parties whoever is or are aware the nullity. A new act of the will is required, consenting to a marriage, which the renewing party knows or thinks was invalid from the beginning. Thus perseverance of the original consent is not sufficient (c.1157). There are two possible scenarios: a) If the impediment was public, consent must be renewed by both parties in the canonical form, without prejudice to what is laid down about dispensation of form by legitimate authority (c.1158, §1 and 1127, §2); b) If the impediment cannot be proved (i.e., not public fact), consent may be carried out in private and without witnesses by the party or parties who know of it (cc.1158,§2 and 1159,§2).
b. If the invalidity is brought about by a defect in consent, it is convalidated if the party who did not consent now does consent, provided the consent given by the other party persists (c.1159, §1). a) If the defect of consent can be proven, the new consent must be given in the canonical form (c.1159, §3); b) If the defect of consent cannot be proven, it is sufficient that the party who did not consent gives consent privately and in secret (c.1159, §2).
3. Retroactive Convalidation (Sanatio in radice) is its recognition by the competent authority, without renewal of consent by the parties, granted by the competent authority, involving the dispensation from any impediment and from the canonical form if this had not been observed, as well as a referral of the canonical effects of marriage back to the past. The juridic elements of the institution are the following:
a) A valid consent, since the retroactive convalidation is nothing else but an act of authority recognizing the existence of a bond arising from an act of the spouses contracting such bond. Thus, the following possibilities can be considered:
1) If consent is lacking from the beginning in either or both of the parties, retroactive convalidation cannot be granted (c.1162, §1).
2) If consent was lacking from the beginning, but was subsequently given, a retroactive validation can be granted, effective from the moment the consent was given (c.1162, §2).
3) If the consent was present at the beginning but was subsequently revoked, a retroactive validation cannot be granted (c.1162, §1). As a corollary, the Code stipulates that a retroactive validation is should not be granted unless it is probable that the parties intend to persevere in conjugal life (c.1161, §3).
b) A relaxation of the law in the specific case─i.e. a dispensation─from either an impediment present at the moment of celebration or the canonical form which had not been observed. This is implied in the very act of recognition itself─i.e., there is no distinct act of dispensation previous to the recognition. Consequently, the ecclesiastical authority competent to grant the retroactive validation is only that which has competence to dispense from the particular impediment:
1) The Apostolic See (c.1165, §1)─for all cases, including those involving an impediment of natural or divine positive law but only when this has ceased (c.1163, §2).
2) The Diocesan Bishop─for particular cases, except in cases of impediments whose dispensation is reserved to the Apostolic See, or if there is a question of an impediment of natural law or divine positive law which has ceased (c.1165, §2).
c) Retroactivity of the effects. In this regard, one must distinguish between:
1) The matrimonial bond¬─which begins to exist at the moment of the validation (c.1161, §2). It would be absurd to speak of a retroactive existence of the bond, since precisely the marriage was null from the beginning.
2) The juridical relations ensuing from the marriage─e.g., filiation, financial regime, the right of inheritance─which could be referred back to the moment the marriage was celebrated, unless it is otherwise expressly provided (c.1162, §2). Thus, for example, children conceived or born before the retroactive validation are considered legitimate (c.1137); in contrast those conceived or born before a simple validation are considered illegitimate before that simple validation but legitimated by it (c.1139). Nevertheless, as far as canonical effects are concerned, legitimated children are equivalent to legitimate children in all respects, unless it is otherwise expressly provided by law (c.1140).
d) Possibility of granting it without knowledge of either or both of the parties─since it is an act pertaining to the ecclesiastical authority and is therefore an act not subject to the intention of those to whom it is given. However, a norm of prudence and good administration prescribes that the interested parties should be aware of the validation that is to be granted, except for a grave reason (c.1164).
Conclusion
Fr. Justin acted canonically and pastorally very well. It is especially noteworthy that he did not agitate the already troubled marriage by informing the parties of the possible invalidity of their marriage, but rather corrected the defects, while strengthening the de facto marriage, a pastoral procedure which in the end worked to the advantage of the parties and their children.
On one of these occasions, Robert tells Fr. Justin his life's story. Among other things, he says that when he got married he was not yet baptized. He had been born in another country, in a very poor neighborhood where there was only a provisional church─subsequently destroyed─with a young parish priest. During the canonical interview prior to marriage, the priest had gone over the paperwork hurriedly without asking him if he was baptized and Robert didn't say anything either. After three years, Robert and Lydia immigrated with the whole family to the country where they now are. At that time, fearing that he may have done wrong previously, he got baptized without telling his wife who did not know anything in this regard.
Robert reveals these circumstances only because Fr. Justin pulled his tongue, since he himself does not think that there was anything irregular and had been living peacefully since being baptized. His only worry was that since two years ago there have been some marital quarrels: nothing serious, but his wife is frequently in a bad mood, answers bitterly and─since the children had grown up─had talked about the two of them going back to their country of origin.
Fr. Justin realizes that the marriage of Robert and Lydia was invalid due to the impediment of disparity of cult. Nevertheless, fearing a possible break-up of the family otherwise and not knowing well how to proceed, he does not say anything in this regard. At the moment he limits himself to counseling Robert on other aspects of his Christian life, and makes an appointment with him for another conversation.
Upon studying cc. 1156-1164 of the Codex, Fr. Justin initially thinks that a radical sanation was not possible, since the impediment that needed dispensation had disappeared, and he considers how to effect a convalidation with a renewal of matrimonial consent. This scenario worries him, thinking that problems hitherto absent─since Robert and Lydia obviously consider themselves man and wife─could arise. He therefore consults a priest friend, Fr.Benedict─an expert in Matrimonial Law─narrating the case to him in abstract terms. Fr.Benedict explains to him that a radical sanation was possible, even without the knowledge of either or both parties, and this could be granted by the Bishop of the diocese of the couple.
Fr. Justin directs himself to the Bishop, who─upon knowing the persistence of matrimonial consent in Robert and Lydia─decides to grant the sanatio. Furthermore, considering that the couple were immigrants from a country of a very different culture and their other circumstances, he deems that there is a serious cause in order to grant such sanatio without previous notification of the parties, in accordance with c.1164.
In the next conversation with Robert, Fr. Justin talks to him about his marriage in order to strengthen it. He tells him that since he and Lydia were married before God and the Church, they count on all the divine help in order to surmount all difficulties, and that all these depend in great part on him: his prayer, his dedication to his family over whatever egoism, his effort to understand Lydia and make her happy, etc.
Did Fr. Justin act correctly?
1. Preliminary review of canonical doctrine on marriage
a. Three elements are necessary for the validity of a canonical marriage:
1) Juridical capacity to marry: In principle all faithful have the ius connubi, unless the Law denies it due to a personal condition (diriment impediment).
2) Matrimonial consent: A human act that can be undermined by factors affecting the intellect or the will of the contractant.
3) Canonical form: A purely canonical convention, which in principle should not be defective since the marriage is contracted before a qualified witness (bishop, priest or deacon) who precisely is tasked to make sure that this form is observed.
b) The nullity of a marriage usually stems from a defect in either of the first two elements above at the time of its celebration. The Code provides two methods for making good─synonymously called validation or convalidation─marriages that are null due to a defect in capacity or a defect in consent.
c) A marriage that is null due to defect of form cannot be a case for simple convalidation. Consequently, the code provides for a new celebration of marriage─i.e., it must be contracted anew in the canonical form (c.1160), without prejudice to a dispensation from such form in special cases (c.1127, §2).
2. Simple convalidation consists in the renewal of marriage consent by one or both parties, after the reason for nullity─either a diriment impediment or a defect of consent─has ceased, without the need to observe again the canonical form ad validitatem. There are two possible scenarios:
a. If the reason for nullity was a diriment impediment, there are two requisites for convalidation (c.1156, §1):
1) Cessation of the impediment, either by dispensation or by facts that make it disappear (e.g., reaching legal age, death of previous spouse).
2) Renewal of consent by either or both parties whoever is or are aware the nullity. A new act of the will is required, consenting to a marriage, which the renewing party knows or thinks was invalid from the beginning. Thus perseverance of the original consent is not sufficient (c.1157). There are two possible scenarios: a) If the impediment was public, consent must be renewed by both parties in the canonical form, without prejudice to what is laid down about dispensation of form by legitimate authority (c.1158, §1 and 1127, §2); b) If the impediment cannot be proved (i.e., not public fact), consent may be carried out in private and without witnesses by the party or parties who know of it (cc.1158,§2 and 1159,§2).
b. If the invalidity is brought about by a defect in consent, it is convalidated if the party who did not consent now does consent, provided the consent given by the other party persists (c.1159, §1). a) If the defect of consent can be proven, the new consent must be given in the canonical form (c.1159, §3); b) If the defect of consent cannot be proven, it is sufficient that the party who did not consent gives consent privately and in secret (c.1159, §2).
3. Retroactive Convalidation (Sanatio in radice) is its recognition by the competent authority, without renewal of consent by the parties, granted by the competent authority, involving the dispensation from any impediment and from the canonical form if this had not been observed, as well as a referral of the canonical effects of marriage back to the past. The juridic elements of the institution are the following:
a) A valid consent, since the retroactive convalidation is nothing else but an act of authority recognizing the existence of a bond arising from an act of the spouses contracting such bond. Thus, the following possibilities can be considered:
1) If consent is lacking from the beginning in either or both of the parties, retroactive convalidation cannot be granted (c.1162, §1).
2) If consent was lacking from the beginning, but was subsequently given, a retroactive validation can be granted, effective from the moment the consent was given (c.1162, §2).
3) If the consent was present at the beginning but was subsequently revoked, a retroactive validation cannot be granted (c.1162, §1). As a corollary, the Code stipulates that a retroactive validation is should not be granted unless it is probable that the parties intend to persevere in conjugal life (c.1161, §3).
b) A relaxation of the law in the specific case─i.e. a dispensation─from either an impediment present at the moment of celebration or the canonical form which had not been observed. This is implied in the very act of recognition itself─i.e., there is no distinct act of dispensation previous to the recognition. Consequently, the ecclesiastical authority competent to grant the retroactive validation is only that which has competence to dispense from the particular impediment:
1) The Apostolic See (c.1165, §1)─for all cases, including those involving an impediment of natural or divine positive law but only when this has ceased (c.1163, §2).
2) The Diocesan Bishop─for particular cases, except in cases of impediments whose dispensation is reserved to the Apostolic See, or if there is a question of an impediment of natural law or divine positive law which has ceased (c.1165, §2).
c) Retroactivity of the effects. In this regard, one must distinguish between:
1) The matrimonial bond¬─which begins to exist at the moment of the validation (c.1161, §2). It would be absurd to speak of a retroactive existence of the bond, since precisely the marriage was null from the beginning.
2) The juridical relations ensuing from the marriage─e.g., filiation, financial regime, the right of inheritance─which could be referred back to the moment the marriage was celebrated, unless it is otherwise expressly provided (c.1162, §2). Thus, for example, children conceived or born before the retroactive validation are considered legitimate (c.1137); in contrast those conceived or born before a simple validation are considered illegitimate before that simple validation but legitimated by it (c.1139). Nevertheless, as far as canonical effects are concerned, legitimated children are equivalent to legitimate children in all respects, unless it is otherwise expressly provided by law (c.1140).
d) Possibility of granting it without knowledge of either or both of the parties─since it is an act pertaining to the ecclesiastical authority and is therefore an act not subject to the intention of those to whom it is given. However, a norm of prudence and good administration prescribes that the interested parties should be aware of the validation that is to be granted, except for a grave reason (c.1164).
Conclusion
Fr. Justin acted canonically and pastorally very well. It is especially noteworthy that he did not agitate the already troubled marriage by informing the parties of the possible invalidity of their marriage, but rather corrected the defects, while strengthening the de facto marriage, a pastoral procedure which in the end worked to the advantage of the parties and their children.
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