Adoption

(Inst.Gai.1.97.-107., Instl.ll., D.I.7., C.8.47.)

By the late Republic, the Romans had an established adoption law in situ, mainly because adoption was regarded as an important method for acquiring potestas, creating heirs, and perpetuating families in danger of extinction.

5.3.1 Forms of adoption

There were two forms of adoption in Roman law: adrogatio, the adoption of a sui iuris person; and adoptio, the adoption of someone alien! iuris. However, before con­sidering each form separately, it is useful to summarize their common features, see Frier and McGinn, Casebook, 304-14.

5.3.1.1 Similarities between adrogatio and adoptio

(a) Until late law the adopter acquired potestas over the adopted person in both forms of adoption.

(b) Until late law the adopted person changed families, i.e. became for all legal purposes a member of the family of the adopter and ceased to be a member of his previous family.

(c) Under the principle that 'adoption imitates nature’ it was established that the adopter must be at least eighteen years older than the adopted person:

Modestinus, Distinctions, book 1: Not only when someone is adopting but also when he is adrogating, he must be older than the person he is making his son. What is more, he must be of complete puberty, that is, he must be eighteen years older than the person in question.

The requirement of 'complete puberty' ensured that the adopter was mature enough to be a father. It is likely that the age-difference rule was a post-classical development (D.l.7.40.1. is probably an interpolation).

(d) As a general rule—certainly of late law if not earlier—the adopter had to be physically capable of marriage, though there seems to have been an exception in the case of eunuchs. This rule too followed from the principle that 'adoption imitates nature'.

(e) Women could not adopt since they could not have potestas. But Diocletian allowed an exception: women whose children had died could adopt (by adoptio) as a consolation for their loss. Potestas could not ensue in such a case, but the adopted child did acquire rights of intestate succession in its adoptive mother's estate.

(f)As regards public rank and status, adoption had the effect of raising the status of the adopted person, but not lowering it:

Paul, Replies, book 7: A person's rank is not lowered by adoption, but it is raised. Thus, even on adoption by a plebeian a senator remains a senator... (D.l.7.35.)

(g) The adoptive relationship created a bar to marriage in certain cases (see 5.2.2.4).

(h) Adoption involved a transfer of obligations:

Paul, Lex Julia et Papia, book 3: There are transferred to an adoptive father any legal burdens incumbent on the person given in adoption. (D.l.7.45.)

The delictual obligations of the adopted person bound the adopter, who would have the choice of payment of damages or noxal surrender. Contractual obliga­tions, however, did not generally bind the adopter since they were usually extin­guished by the adoption. So, the praetors sometimes allowed contractual remedies to the innocent party (under the contract) on the fiction that the adopted person was sui iuris.

5.3.1.2 Adrogatio

This was originally the adoption of a sui iuris male, i.e. of a paterfamilias. Thus, adrogation involved the termination of a Roman family—one paterfamilias adopted another.

Since adrogation involved the extinction of a Roman family, it is not surprising that the formal requirements were strict. Adrogation took place before the comitia curiata, presided over by the chief pontiff, who investigated the desirability of the proposed adrogation. If satisfied, he would ask the parties and the assembly in turn whether they consented to the adoption. The term adrogatio was derived from this question and answer procedure:

Gaius, Institutes, book 1: This species of adoption is called adrogatio because, on the one hand, the adopter is rogated, that is, asked, if he wishes the person he is about to adopt to be his own lawful son, and, on the other, the adoptee is rogated if he will allow that to happen. (D.1.7.2pr.)

Since boys under the age of puberty and women could not appear before the comitia calata (the term used for the comitia curiata when it dealt with wills), they could not originally be adrogated. However, adrogation of boys under the age of puberty became possible under Antoninus Pius subject to strict conditions; and Diocletian allowed women to be adrogated, although it is unlikely that this occurred often. Moreover, Diocletian changed the adrogation process. An inquiry was still neces­sary, but the adrogation was affected by imperial rescript (see Thomas, J. A. C., 'Some Notes on Adrogatio per Rescriptum Principis' (1967) 14 RIDA 3, 413-27, for the use of this form of adrogation during the reign of Diocletian. The article also contains interesting information about adrogation by and of women).

The effect of adrogation was that the adopted person passed into the adopter's potestas for all legal purposes.

Modestinus, Distinctions, book 1: On the adrogation of a head of the household, those children who were in his power become grandchildren to the adrogator and come into his power at the same moment as does their father. (D.l,7.40pr.)

The adopted person acquired something too—the right to succeed on his adoptive father's intestacy. In practice, an intestacy was unlikely after an adrogation: as the whole purpose of such an adoption was to perpetuate a family through the creation of an heir, the probability was that the adopter would make a will appointing the adoptee as his heir. If the latter was illegitimate, the adrogatio had the effect of mak­ing him the legitimate son of the adopter until the late Empire (when this method of legitimation was prohibited). A derivative form of adrogatio could also occur by

way of a will, the so-called comitial will, where a sui iuris person assumed the posi­tion of the son and heir at the moment of the testator's death. It was generally known as adrogation in contemplation of death.

5.3.1.3 Adoptio

This was the adoption of alien! iuris persons, involving their removal from the power of the previous paterfamilias, and the creation of potestas and new agnatic tie; within the adoptive family. The procedure used in early law for adoptio was similar to that in emancipation (see 5.1.2.4)—mock sales and resales between the pater­familias and the adoptive father, utilizing the Twelve Tables rule that the son was freed from his father's power on the third sale. Only one sale was required for the adoptio of a daughter or remoter issue. This procedure gradually became obsolete in the Empire. It became the practice for the parties to appear before a magistrate with a written assertion that the sales had taken place (even though they had not).

Did the adoptee have to consent to the adoption? Not in early law, it seems; but the rule later emerged that an adoptio could not occur if the adopted person objected (there need not be any evidence of positive consent, however).

Paul, Views, book 2: One can adopt somebody as a grandson even though one has no son. (D.1.7.37pr.)

However, since 'adoption imitates nature', it is probable that a person could not be adopted as a grandchild unless the adopter was old enough to be a grandparent—it seems there had to be a gap of two generations between them in age.

The legal consequences of adoptio were that the adoptee became a member of the adoptive family and acquired rights of intestate succession to his adoptive father. But he lost rights in his natural father’s intestacy unless he was emancipated by the adopter, in which case the adoptee reacquired intestacy rights to his natural father (under the praetorian law of succession). A major difference from adrogatio was that in adoptio only the adopted person (and not his family) passed into the potestas of the adopter. But any children of the adopted person conceived after the adoption entered the power of the adopter.

5.3.2 Justinian's reforms

Adoption was one of the few areas of the law of persons that was not altered signifi­cantly by Augustus. Justinian, however, did make major changes. The most impor­tant were:

(a) In adrogatio the adopter no longer had absolute rights to the property of the adopted person but was given rights similar to that of a usufructuary—the right to enjoy the property and take its fruits.

(b) Justinian simplified the procedure in adoptio. All that was required was for the three parties to make the appropriate declarations before a magistrate, recorded in the court archives.

(c) Justinian altered the legal effects of adoptio if the adopter was not a natural ascendant of the adopted person: the latter did not pass into the potestas of the adopter and remained a member of his natural family—there was no exchange of families. But he acquired rights in the estate of the adopter (should the latter die intestate)., thus giving the adoptee rights in the intestate estate of both his natural and adoptive father, a useful measure of protection against capricious emancipation. Such adoption was termed adoptio minus plena, i.e. ‘less than full adoption'. Where the adoptio was by a natural ascendant, the legal consequences were as before, i.e. it was a 'full' adoption {adoptio plena).

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