Family Relationship

2.2.3.1 Status Familiae and Patria Potestas

A person's position as a member of a family group (familia) played an important part in Roman social and legal life, and was a factor determining the question of whether a person was independent (sui iuris) or subject to the control of another (alieni iuris).

The alieni iuris persons were under the authority of the father of the family (paterfamilias), the oldest male member of the family, who was entitled as a person sui iuris to enjoy the maximum number of rights or capacities that a Roman citizen could possess. The paterfamilias was the pivot of the Roman family system, as his power and authority (patria potestas) over the members of his family was the tie that held the family together. Usually, the paterfamilias had authority over his wife (uxor), provided that she had been married to him by virtue of a cum manu marriage^{^[129]}; his children^{^[130]}; his grandchildren and further descendants from marriages of sons in his potestas; his legitimised and adopted children; as well as slaves or other individuals similarly dependent on him.^{^[131]} The term agnatio denoted the relationship between all persons under the potestas of the same pater, or persons who would have been under such potestas if their common paterfamilias had still been alive.^{^[132]} Regarding persons under the patria potestas, it should be noted that a blood relationship (cognatio) was irrelevant in early Roman law but gradually evolved as a factor of central importance in the time of Justinian (especially in the field of intestate succession).

Originally, the power of the paterfamilias over his dependants was theoretically almost unlimited.

He had the right of life and death (ius vitae necisque) over the members of his family; that is, the power to kill them, sell them into slavery beyond the city limits of Rome,^{^[133]} or simply abandon them if he so wished. However, in practice, such power was limited by custom and public opinion and was only exercised in exceptional circumstances.^{^[134]} Furthermore, the paterfamilias could marry-off or forbid the marriage or divorce of a dependant as well as give them away for adoption or emancipate them. A paterfamilias had a right of action against any person who unlawfully prevented him from exercising control over a child or other dependant.

Those subject to the authority of the paterfamilias could not own or acquire any property of their own. Everything a dependant acquired or already had in his possession was deemed the property of the head of the family. However, an exception to this rule emerged in respect of the male descendants of the paterfamilias-the filiifamilias.^{^[135]} Like competent slaves, the filiifamilias were allowed de facto enjoyment of a peculium; a term denoting an estate consisting of various forms of property that gradually became considered, for all practical purposes, the property of the filiifamilias. A distinction was drawn between:

(a) peculium profecticium, which was largely similar to the peculium given to a slave (it remained the property of the pater, but the filius had control over it)^{^[136]};

(b) peculium castrense,^{^[137]} which was the property a filiusfamilias acquired during his service in the army (e.g. salary, gifts, plunder) and in respect of which he had total freedom of possession; (c) peculium quasi-castrense, which included everything the filius acquired from other professions or civil employments and which, in the post-classical era, was equated with the peculium castrense; and (d) peculium adventicium, which comprised the property a filius inherited from his mother (bona materna), but was later extended to include everything that did not specifically form part of the peculium castrense or quasi-castrense.

Furthermore, a filiusfamilias could be held liable for his delicts or criminal acts but such liability could only be enforced once the filius became sui iuris, usually after the death of his paterfamilias. Originally, the paterfamilias could be held liable for delicts committed by the filiusfamilias in terms of the actio noxalis that gave the father the choice between paying the damages and surrendering the delinquent. However, in later times an action was allowed against the filiusfamilias himself.

As Roman society evolved over the course of time, the power of the paterfamilias over his dependants considerably decreased. The ius vitae necisque became obsolete and was abolished^{^[138]} together with the father's power to sell his dependants into slavery.^{^[139]} At the same time, various duties were placed on the head of the family with regard to his dependants, such as the duty to provide maintenance and the duty to give his daughter a dowry (dos) when she entered into marriage.^{^[140]}

The patriapotestas came to an end in a number of ways. The most common mode was the death of the paterfamilias or a change in his status following a capitis deminutio (e.g. loss of citizenship).^{^[141]} Moreover, when a daughter entered into marriage cum manu she immediately fell under her husband's authority. The patriapotestas also terminated when the paterfamilias gave his child to another for adoption (in adoptione), or when he released such child from his paternal power by means of the emancipatio process.

2.2.3.2 Adoption

The institution of adoption had great importance to the ancient Romans, especially the members of the upper classes concerned with the continuation of the family line, family name and cult of their ancestors.

Thus, the fear that a family might become extinct usually prompted the head of the family to adopt an outsider who, in this way, was brought under his patriapotestas² Two forms of adoption existed: adrogatio and adoptio ^{^[142]}^{^[143]}

Adrogatio occurred when a sui iuris person was brought under the patriapotestas of another.^{^[144]} The effect of the adrogatio was that all persons in the power of the adrogated person (adrogatus) as well as his property^{^[145]} fell under the potestas of the adrogator (pater adrogans) as his new paterfamilias. Because of its important consequences for social relations, adrogatio was originally effected by a legislative act of the people's assembly (comitia curiata).^{^[146]} In the imperial age, the relevant process took place before the emperor whose approval was expressed by means of an imperial order (rescriptum principis).^{^[147]} The law of Justinian required that the adrogator was a minimum of 60 years old and unlikely to have children of his own.^{^[148]}^{^[149]} Moreover, there were specific safeguards in respect of the adrogatio of sui iuris persons under the age of puberty (impuberes)?² The law first required an intensive inquiry into the circumstances of each particular case to determine whether the adrogatio would be beneficial for the child. Furthermore, the adrogator had to provide security that if the adrogatus should die while still underage he would restore the property of the adrogatus to the persons who would have inherited from the latter had there been no adrogatio. The adrogator was also not entitled to disinherit or discharge the adrogatus from his potestas without good cause, in any event not without restoring the property of the latter.^{^[150]}

Adoption in the form of adoptio transpired when a person alieni iuris, i.e.

under the power of another, was transferred from the potestas of one pater to that of another. Although originally this form of adoption was not available in early Roman law, the interpretation of certain principles of the Law of the Twelve Tables and the old ius civile facilitated the establishment of adoptio. The Law of the Twelve Tables provided that if a father sold his son three times, the son would be released from his paternal authority. This provision was meant to restrain fathers from the regular exercise of the right to sell their children, but expansive interpretation of this rule enabled the early jurists to establish adoptio. The relevant procedure was as follows: the original paterfamilias sold his son three times to a confidant (familiae emptor) by implementing a procedure known as mancipatio^{^[151]}and the confidant then immediately freed the son twice, whereupon the son reverted to his father's potestas; after the third sale the son was not, however, set free but was sold back to the original father in respect of whom he would now be in mancipio^{^[152]}; at this point the adopting father (pater adoptans) stepped forward and instituted proceedings claiming the son from the original father; the latter offered no defence disputing the claim and the praetor (the jurisdictional magistrate) awarded the son to the adopting father.^{^[153]} The first stage in the above procedure broke the potestas of the original paterfamilias, while the second stage transferred the potestas by in iure cessio (‘transfer in law').^{^[154]} It should be noted that only sons had to be sold thrice; where other alieni iuris persons (such as daughters or grandchildren) were given away for adoption, a single sale by mancipatio was sufficient. The transfer of the adoptee from one patria potestas to another broke his agnatic relationship with his old family and cancelled his right of succession in that family whilst establishing a new position as though he had been born into the adoptor’s family.

Under the influence of certain Hellenistic customs, Justinian considerably simplified the adoptio procedure.

In the new system, the two patres and the alieni iuris person who was to be adopted had to appear before a magistrate. The original pater would then declare that he wished to give the alieni iuris person in adoption and the magistrate recorded this declaration in the court register (acta). If the alieni iuris person was in a position to do so, he was required to give his consent to the adoption agreement. Justinian also fundamentally changed the effects of adoptio by providing that only where the adoptor was a natural ascendant did the adoptee pass into his patria potestas—this was known as adoptio plena. Where the alieni iuris person was adopted by a third party (extraneus), the adoptee remained in the potestas of his original pater thereby retaining his rights of succession in relation to him and also acquiring a right of intestate succession in respect of the adoptor. This form of adoption was referred to as adoptio minus plena. According to another rule introduced by Justinian, the pater adoptans had to be at least 18 years older than the person to be adopted. Moreover, Justinian’s initiatives facilitated the adoption of someone as a child or grandchild and granted women the right to adopt children under certain circumstances, which contrasted with the early law that denied them rights to adopt or adrogate.

2.2.3.3 Emancipation

Emancipation (emancipatio) was a formal process whereby a person alieni iuris was released from the patria potestas by his paterfamilias and became sui iuris. It was the most common method of terminating paternal power. Just as in the case of adoptio, emancipatio was derived from the rule of the Law of the Twelve Tables according to which a paterfamilias who sold his son three times lost his power over him.^{^[155]} In the Principate age this method was effected as follows: the father sold his son by mancipatio three times (daughters and grandchildren only once) to a confidant who then granted the son his freedom on two occasions, whereupon he returned to his father’s potestas, and on the third transaction sold him back to the emancipating father (pater emancipans) who in turn freed the son or other dependant. The confidant could grant the son or other dependant his freedom, but this did not usually happen as in such a case the confidant would have acquired certain rights of succession and guardianship over the emancipated person (emancipatus) that were generally not intended by the parties involved—it was customary that only the emancipating father himself should be the possessor of such rights.

In the later imperial era, the emancipatio procedure was considerably simplified. In ad 502, Emperor Anastasius promulgated that emancipatio could be accomplished when the son was absent by means of a petition to the emperor whose positive response thereto completed the emancipatio without any further formalities.^{^[156]} Justinian simplified the relevant process even further by providing that emancipatio could be performed by a simple declaration of the parties before a competent official and registration of their agreement in the court register.^{^{color=black face="Times New Roman">[157]}}

The most important consequence of the emancipatio was that the patria potestas was extinguished and the emancipated person became sui iuris.^{^[158]} Nevertheless, an emancipated natural-born son remained a cognate of his father and was allowed a right of intestate succession to his father's property.^{^[159]}

2.2.3.4 Legitimation

Children born outside a legitimate Roman marriage did not fall under the potestas of the father. This meant that such children were seriously disadvantaged in respect of their rights of succession and other rights relating to their father. In response to this problem, the institution of legitimation (legitimatio) emerged from mainly legislative action whereby illegitimate children could acquire the status of legitimacy and be brought under the potestas of their father.^{^[160]}

There were three classes of illegitimate children: (a) liberi naturales—children born out of a concubinate (concubinatus), a lasting relationship between a man and a woman who lived together without being lawfully married; (b) spurii or vulgo concepti—children born out of an extramarital affair or out of the relationship between the mother and an unknown father^{^[161]}; and (c) adulterini et incestuosi— children born from adulterous and incestuous unions.

Legitimatio was closely connected with the institution of concubinatus. As a durable monogamous cohabitation between a man and a woman,^{^[162]} concubinage bore a great resemblance to regular marriage and as such was not immediately rejected but viewed as an inferior kind of marriage. However, the growing influence of Christian values during the fourth century ad entailed the concubinatus falling into disrepute and the imposition of disincentives to concubinate unions in the form of various restrictions placed by the state on the rights of children born out of such relationships (liberi naturales). Parents or, where possible, the children themselves could seek to avoid such restrictions by relying on legislative enactments introducing the possibility of legitimising the offspring of a concubinage.

Three distinct forms of legitimation were recognized during the Christian era:

(a) legitimatio per subsequens matrimonium; (b) legitimatioper oblationem curiae; and (c) legitimatio per rescriptum principis.

In the case of legitimatio per subsequens matrimonium, the legitimation of children born out of a concubinate was accomplished by the subsequent legal marriage of the parents.^{^[163]} The following requirements had to be met: (a) the parents must have been able to marry each other at the time of the child's conception;

(b) they had to draw up a contract (instrumentum dotis or instrumentum dotale) as proof of their intention to transform the concubinage into a proper marriage; and

The legitimatio per oblationem curiae was introduced in the fifth century ad and consisted of the enrolment by a father of his illegitimate son as a member of a municipal council (curia), a local body charged with the administration of a community and comprised of persons who met certain property qualifications (decuriones or curiales).^{^[164]} The purpose of the relevant legislation was to increase the number of candidates for the office of decurio—an office that entailed heavy financial and other burdens for its holders and was therefore increasingly unpopular.^{^[165]}

Emperor Justinian was responsible for the creation of the legitimatio per rescriptum principis: legitimation by a rescript of the emperor. This form of legitimation occurred in exceptional cases where a marriage between the concubinaries was impossible. In such cases, the father could petition the emperor or enter a request in his will for a rescript legitimating his children by a concubine who was either dead or unfit to marry. The result of such legitimation placed the child under the potestas of his or her father.^{^[166]}

2.2.4

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Source: Mousourakis G.. Fundamentals of Roman Private Law. Springer, 2012.— 366 p.. 2012

Family Relationship

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