What does a returning Catholic who contracted marriage in a Protestant church need to do when the spouse wants to remain Protestant?

Question

The Background

A baptized and confirmed Catholic married a Protestant in a Protestant church without permission. About the marriage:

• The marriage covenant was made with the full understanding of what a Christian marriage meant in the eyes of God (cf. CCC 1601-1620): a solemn covenant between two baptized Christians, with full consent (cf. CCC 1625-1632), for life, for the purpose of procreation, etc.
• The celebration of marriage was similar to CCC 1621-1624 and similar to the canonical form, except:
  • officiated by a valid Protestant minister instead of a Catholic priest/deacon
  • CCC 1621: instead of in the presence of Christ in the Eucharist, it's made in the presence of Christ in the Protestant ceremony
  • CCC 1622: instead of receiving the sacrament of penance, the couple confess sin to one another in Christ
• The couple has lived honoring the marriage bond and obligations like a Catholic marriage should be (even without contraception), thus realizing The Effects of the Sacrament of Matrimony (cf. CCC 1638-1642), The Goods and Requirements of Conjugal Love (cf. CCC 1643-1654), and The Domestic Church (cf. CCC 1655-1658).
• The couple is raising the kids as Protestants although in a denomination that is not hostile to the Catholic Church. The couple is also attending a conservative Protestant church regularly and bring up their kids there as good Christians who love the Lord. Let's say it's ACNA, a more conservative Anglican denomination than the Church of England.

Now the Catholic has second thoughts and wants to go back to being in a state of grace and receive the Catholic sacraments. But the spouse wants to remain in the Protestant church and does not allow the kids to attend the Catholic church, although the spouse gives full freedom for the Catholic to practice the faith EXCEPT to teach the kids one or two Catholic doctrines that the spouse doesn't agree, such as praying to Mary. THIS IS TRULY A TESTAMENT TO THE WARNING GIVEN IN CCC 1634. Therefore, although the spouse is more ecumenical than a typical Protestant, the Catholic cannot fully discharge the obligation spelled out in Can. 1125 §1 but made the best effort:

the Catholic party is to declare that he or she is prepared to remove dangers of defecting from the faith and is to make a sincere promise to do all in his or her power so that all offspring are baptized and brought up in the Catholic Church;

For sure, the Catholic has to receive absolutions for the following:

• Have been away from the Catholic church
• Have contracted a mixed marriage outside the church without exemption

But I was taken aback at Geremia's answer that fornication needs to be repented. Is this true when the marriage is lived as described above?

The Question

Given the limitation that the spouse is not willing to convert and to raise the kids fully within the Catholic church (although she is not hostile to most of the teachings), according to the Catholic Church, what else does this Catholic need to do beyond confessing the two sins above and continue raising the kids in the Lord as Catholic as possible?

Three related questions:

1. CCC 1623 says that

   According to Latin tradition, the spouses as ministers of Christ's grace mutually confer upon each other the sacrament of Matrimony by expressing their consent before the Church. ...

   Although the "Church" here is a Protestant ecclesial community, it appears that this Catholic can remain in this Protestant marriage (as described above) without committing fornication, or is this not true?

2. It DOES appear that the marriage has to be convalidated since the Catholic married in a non-Catholic ceremony without an exemption from the Catholic church. But is the Protestant spouse consent / presence needed for the convalidation? A Catholic Answers article suggests that this require radical sanation (Can. 1161 § 1) and in some cases the non-Catholic does not need to know (although it's preferable that the non-Catholic knows). But can radical sanation still be obtained even though the Catholic cannot perform Can. 1125 §1 to the full extent because of the spouse's opposition?

3. Modifying the case study a little, let's say the case is between a Protestant couple in which one wants to become Catholic but the other wants to remain Protestant and the kids need to be raised in the Protestant church. Is it an impediment for the would-be-Catholic to receive communion? Is marriage convalidation necessary / possible in this case? Is fornication committed without convalidation?

Motivation for this question

I believe there are many who are in this situation: who through Catholic evangelization effort now want to go back practicing Catholic but have a difficulty introduced by the Protestant spouse. Ultimately, this is an ecumenical question as all mainline denominations try to reconcile as much as they can without losing their distinctiveness.

Answer 1

I will preface this by stating I am not a canon lawyer, so I am not an expert on canon law and my answer should not be taken to be authoritative. However, I am offering an interpretation of canon law that I think is proper.

First of all, the marriage is not valid. Ordinarily, two people not in the Catholic Church could contract a valid, dissoluble (ie divorce is possible) natural marriage outside of the Catholic Church. Ordinarily, baptized Christians who were never baptized nor confirmed in the Catholic Church could contract a valid, indissoluble (ie divorce is not possible) sacramental marriage outside of the Catholic Church. Ordinarily, if either party to the marriage is baptized and/or confirmed as a Catholic, a valid marriage, natural or sacramental, cannot be obtained outside of the Catholic Church, that is, outside of the prescribed canonical form for a Catholic marriage. This is ordinarily true, but bishops may grant dispensations to have a Catholic marriage validly contracted outside of the prescribed canonical form. In your proposed scenario, it would seem that no such dispensation was sought nor granted, thus we must conclude the marriage is ipso facto invalid. I doubt a tribunal would seek any further evidence to annul this marriage, since questions of consent and the like are irrelevant in this case.

That being said, your hypothetical Catholic wants to keep his or her marriage in tact. Assuming that the protestant party also desires this, radical sanation does seems like the proper route to go. The Code of Canon Law regarding radical sanation is as follows:

RADICAL SANATION

Can. 1161 §1. 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.

§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.

§3. A radical sanation is not to be granted unless it is probable that the parties wish to persevere in conjugal life.

Can. 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.

§2. If this consent was indeed lacking from the beginning but was given afterwards, the sanation can be granted from the moment the consent was given.

Can. 1163 §1. 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.

§2. A marriage which is invalid because of an impediment of natural law or of divine positive law can be sanated only after the impediment has ceased.

Can. 1164 A sanation can be granted validly even if either or both of the parties do not know of it; nevertheless, it is not to be granted except for a grave cause.

Can. 1165 §1. The Apostolic See can grant a radical sanation.

§2. The diocesan bishop can grant a radical sanation in individual cases even if there are several reasons for nullity in the same marriage, after the conditions mentioned in can. 1125 for the sanation of a mixed marriage have been ful-filled. He cannot grant one, however, if there is an impediment whose dispensation is reserved to the Apostolic See according to the norm of can. 1078, §2, or if it concerns an impediment of natural law or divine positive law which has now ceased.

Canon 1078 carves out two impediments that are reserved to the Holy See, namely, those regarding Holy Orders and those regarding a crime regarding canon 1090. I am assuming your hypothetical Catholic spouse never received Holy Orders and is not guilty of any impeding crimes, so I am concluding that the diocesan bishop can grant the sanation.

Googling Radical Sanation first yielded a parish website from Texas regarding the practice. This site outlines three requirements:

A. Both parties must have the intent of persevering in their conjugal life. Otherwise a "radical sanation" cannot be granted.

I am assuming that the both spouses want the relationship to continue qua marriage.

B. Both parties (a) must have consented to the marriage (b) at the same time. This simultaneous consent had to include all the essential requirements of a valid marriage (e.g. monogamy, fidelity, permanence and openness to children). This consent must still exist at present unless one party has indicated otherwise.

We can probably assume that both parties consented at least to monogamy, fidelity, and permanence at the time of the marriage, since they were married in a Protestant church and with a Protestant marital theology. They also may have both been open to children, or one or both of them may not have been. If they were not then, but later became open to children while still consenting to the other three requirements, and still do consent to all four requirements at the time that radical sanation is sought, then they can receive radical sanation retroactively, from the moment when they both consented to all four requirements of marriage. Neither Canon Law nor this website stipulate that consent to raising children in the faith is required of both parties. No ceremony is required, so it would appear to me that an interview of both parties gathering all four kinds of consent on the part of the bishop or an appointed representative should be sufficient to grant radical sanation and retroactively validate the marriage.

C. Any impediments that are present, they must be taken care of. In many cases, such is achieved by obtaining a "radical sanation." When marrying outside the Catholic Church, such as before a Justice of the Peace, the marriage was invalid because of a "Defect of Form." That means that the parties failed to obtain a dispensation from the Bishop for a marriage ceremony outside of the Catholic Church.

I'm assuming the only impediment here is a defect of form, which the radical sanation is supposed to rectify.

In Conclusion

It seems to me that even without the protestant spouse consenting specifically to raising the children Catholic, radical sanation is theoretically possible, since neither Canon Law nor the parish site I found offering to help Catholics obtain it mentioned this requirement. However, practically, your bishop may not be inclined to grant it without such consent, as this refusal will cause the marriage to become very difficult, and he will be responsible for unequally yoking a believer to a non-believer, without even the consent from the non-believer that the children would be raised in the faith. In that case, the Catholic spouse must refrain from marital relations, since the marriage is not valid and any such relation is fornication. Seeking annulment might be the best route if your bishop will not grant radical sanation due to your partner's refusal to raise children specifically in the Catholic faith. If you think you both can bear it, living "as brother and sister" is an option for the sake of your children having a mother and father in the home.