Wednesday, June 4, 2014

Radical Sanitation?

What's a radical sanitation?

That's what you have to do in the milking parlor after you finish with the last cow and know the inspector is coming. Get the hose, the broom, the brush, the soap, and the sanitizer and get to work. Better fire up the pressure washer, too.

Ok, I'll admit, nobody asked me the above question (and hardly anybody reading this knows what I'm talking about). But, I've heard people say "radical sanitation" when they meant to say "radical sanation." A few months ago, I put up a post about convalidation and made a passing remark about a radical sanation. Finally, I'm going to complete that thought.

A radical sanation is one of the two ways an invalid marriage is made valid (the other way is a "simple convalidation"). Canon 1161 §1 says: "The radical sanation of an invalid marriage is its convalidation without the renewal of consent, which is granted by competent authority and entails the dispensation from an impediment, if there is one, and from canonical form, if it was not observed, and the retroactivity of canonical effects."

Let's look at an example. A Catholic wants to marry an unbaptized person. To do so, he must first be dispensed from the impediment of "disparity of cult" (canon 1086). However, his pastor forgets to send the request for the dispensation to the chancery. The man is allowed to marry in the Church. That marriage is invalid and his pastor discovers it, a day after the wedding, as he is finishing up the paperwork. Since he realizes that the error was his own and he does not want to trouble the newlyweds, the pastor decides to approach the bishop for a sanation of this marriage without bringing up the matter to the couple (see canon 1164). The bishop grants the sanation and the marriage, once invalid, is now valid.

As canon 1161 notes, a sanation can be effective if there was an impediment or if canonical form was not observed. The consent of the Parties, however, must be sufficient and present. If it is not, the sanation will not validate the marriage: "Canon 1162 §1. A marriage cannot be radically sanated if consent is lacking in either or both of the parties, whether the consent was lacking from the beginning or, though present in the beginning, was revoked afterwards." Canon 1163 §1 reinforces this: "A marriage which is invalid because of an impediment or a defect of legitimate form can be sanated provided that the consent of each party perseveres." In this example, the priest has no reason to doubt the presence of sufficient consent since he himself witnessed the exchange of consent and it took place only a day before the sanation was requested.

People often wonder what "the retroactivity of canonical effects" means and note that the Latin phrase behind "radical sanation" is sanatio in radice--"healing in the root." Another translation of sanatio in radice is "retroactive validation"--does all of this mean that the marriage itself is made valid from the moment of the wedding? Some people, including some canon lawyers, say that it means just that; I, and other canon lawyers, don't think so. You can take a look at the CLSA's "Green Commentary" (the marriage is made valid from the beginning) and the "Exegetical Commentary" (it's valid from the time of the sanation) to see both points of view. I find the Exegetical Commentary to be more persuasive.

The basic rationale behind my position is this. Consider canon 1161 §2: "Convalidation occurs at the moment of the granting of the favor. Retroactivity, however, is understood to extend to the moment of the celebration of the marriage unless other provision is expressly made." The convalidation--that is, making the marriage valid--occurs at the moment the favor is granted. When the bishop signs the paper, the marriage is made valid. Retroactivity "of canonical effects" (c. 1161.1) refers to the moment of the exchange of consent. A canonical effect is the legitimation of children; the marriage itself is not a canonical effect. This is, indeed, a radical/retroactive validation since the marriage's canonical effects are made present and valid from the beginning but the validation of the marriage itself "occurs at the moment of the granting of the favor." I don't know how canons 1161 § 1 and 1161 §2 could be more clear.

If one asks "I got married outside the Church (i.e., the marriage is not valid due to lack of form) but received a radical sanation 15 years later. Should I celebrate the anniversary on the day of the wedding or the day of the sanation?" I'm only going to say that your marriage was made valid when the sanation was granted and I'm happy that you have a valid marriage. That is something worth celebrating. What you decide to celebrate, when, is up to you.

2 comments:

  1. Thank you for this clear explanation. From what I understand after reading this, it means that after an annulment, a remarried Catholic, who would have obviously not been married in the Catholic Church the second time, would then need a radical sanation because now all that is irregular with their marriage is lack of canonical form? So that would preserve the original anniversary date. That's important, especially if they've been married 25 years with 4 kids - it would feel uncomfortable to forever look back on those years as "invalid". I guess I'm still unclear as to why a convalidation would ever happen then?

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  2. Yes, the Catholic's "second marriage" would be invalid because of a lack of form. Something needs to be done in order to make the marriage valid (usually called "convalidation"). It's like if an unbaptized couple ignores the requirements of civil law in getting married--let's say they have a friend witness their wedding even though that friend is not licensed by the state. Afterwards, they present themselves as married but they actually are not as far as civil law goes. If they want the state to recognize their "marriage" I think the only way to do it is to go to the proper official and "get married." It's similar in the law of the Church. "Radical sanation" is one option to make the civil union a valid marriage but the couple could also marry according to canonical form (i.e., "get married in the Church" with a priest and two witnesses). If there is no opposition to having such a ceremony, that's the way to go.

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