Małżeństwo mieszane zawarte z pominięciem formy kanonicznej

Abstract

In ordinary circumstances, the canonical form is a necessary condition for the validity of a mixed marriage. If there are grave reasons, the local Ordinary of the Catholic party may dispense from it, however, some public form of celebration is required. To fulfill the requirement of a public form, a marriage should be celebrated in the presence of the minister of the other Christian party and in the form prescribed by it. This requirement is also fulfilled if a marriage is celebrated in the presence of the competent authority (representative) of the State according to the legitimately prescribed civil form, and as long as the form of celebration does not exclude essential goals of marriage. In the case when a non-Catholic party is of the Oriental Rite, the canonical form is necessary only for the licity of marriage. The validity of this marriage is conditioned by the intervention of the Church's minister, and if the Catholic party is of the Oriental Rite the blessing of the priest is obligatory. This marriage is valid independent of the dispensation. If the non-Catholic party is of the Protestant tradition, the dispensation of the local Ordinary is a necessary condition for the validity. The local Ordinary may grant the dispensation if conditions prescribed by can.1125 (CIC 1983) are fulfilled. If these are not fulfilled in a given time and, therefore, the dispensation is not granted, or if the parties are not asking for a dispensation and intending to get married, the marriage is not valid canonically. In order for a marriage to be valid, the Catholic party must request convalidation. If the cause of nullity of marriage is the lack of a canonical form of celebration, it is impossible to apply a simple convalidation. However, a marriage would be valid with a new celebration according to a canonical form. Another form of convalidaton is the radical sanation (sanatio in radice), e.g. if the Catholic party does not want to renew consent. According to can.1161: “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 (.) canonical form, if it was not observed, and the retroactivity of canonical effects” (CIC 1983). Sanatio in radice necessarly presupposes a permanence of consent of the parties in a moment of sanation. If this condition is fulfilled it is possible to classify an invalid marriage as a case of defected canonical form.