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).
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.