Forms of Marriage: Cum Manu and Sine Manu

In our previous discussion of the family relationship, we noted that the wife of a paterfamilias could fall under his potestas when she had married him in a particular way.

This form of conclusion of marriage originated in the earliest period of Roman history and was known as conventio in manum. Manus, the power of the husband over the wife, legally resembled patria potestas—in a marriage cum manu the wife was ‘in the hand' (manus) of her husband or, if he was himself in potestate, in that of his paterfamilias?⁹

There were three processes by which a woman was transferred into the manus of her husband: confarreatio, coemptio and usus.^{^[197]}

Confarreatio was a religious ceremony that created both manus and the marriage itself.^{^[198]} The rite was performed at the bridegroom’s house and consisted of the solemn sacrifice of a special loaf (panis farreus) to the god Jupiter. Formal words were spoken in the presence of ten witnesses and under the supervision of a priest of Jupiter (flamen dialis) and the chief priest (pontifex maximus). The ceremony had the effect that the woman came under the protection of the household gods of her husband’s family and simultaneously fell under his manus.

Coemptio was a purely legal ceremony. It consisted of the formal conveyance of the wife to the husband by means of a fictitious sale conducted according to the technical procedure of mancipatio (also employed for adoptio and emancipatio). Like confarreatio, the coemptio created both manus and the actual marriage.

Usus, the third method of acquiring manus, did not involve a specific form of process. One might construe this method as the acquisition of manus by prescription: a woman who remained with her husband and under his authority for an uninterrupted period of 1 year fell under his manus by usus.^{^[199]}^{^[200]} However, the acquisition of manus could not be accomplished if the wife stayed away from the matrimonial home for three successive nights (absentia trinoctium) before the year

was over.

The main legal effect of the marriage cum manu was that the woman passed into the power of her husband or, if he was himself in potestate, into the power of his paterfamilias.

This implies that if she had been sui iuris, this mode of marriage rendered her alieni iuris and her property at the time of the conclusion of the marriage as well as all that she subsequently acquired passed to her husband or his pater. If she had been under the potestas of her paterfamilias, she left her original family in becoming a member of her husband’s family. It should be noted, moreover, that a wife in manu was considered to be in the position of a daughter (filiae loco) in respect of her husband and in the position of a sister (sororis loco) in respect of her children. A woman married cum manu was called materfamilias and enjoyed the highest regard in the community.

In the earliest stage of Roman history all marriages were cum manu, but a new form of marriage emerged during the republican age as family relationships became less rigid and women acquired a greater degree of independence (probably under the influence of Greek individualistic ethics): this novel marriage sine manu did not involve manus. In the closing years of the Republic and during the Principate, the marriage sine manu was the customary form of marriage that had evolved to supersede the cum manu marriage by the time of Justinian.^{^[201]}

The manner in which a marriage sine manu was concluded related to the creation of a cum manu marriage by usus. As noted earlier, the wife who wished to avoid coming under the manus of her husband had only to ensure that she was absent from the marital home for three consecutive nights each year (absentia trinoctium). Instead of returning to her own agnatic family, she would return to the marital home on the fourth night and resume her previous position in her husband's household. By repeating this stratagem every year, she could continue in the marriage without ever transferring to the manus of her husband. However, when the marriage cum manu was later rendered obsolete the requirement of the absentia trinoctium for the creation and perpetuation of a marriage sine manu became redundant and all marriages were deemed to be sine manu.

When a marriage took place sine manu, the wife did not come under the power of her husband or his paterfamilias as she retained the status held before her marriage.

If she had been sui iuris, this status prevailed during the marriage and thus all the property she possessed or subsequently acquired remained her own.^{^[202]} On the other hand, if she had been under patria potestas she remained a member of her original family and all that she acquired accrued to her own paterfamilias. In general, there were few legal effects of the sine manu marriage as the partners stood legally in the same position as strangers to each other. In the course of time, however, the existence of a valid marriage was held to produce certain legal consequences: donations between husband and wife (donationes inter virum et uxorem) were prohibited^{^[203]}; the parties could not institute defaming actions against each other; and the assumption of liability by a wife for her husband's debt (intercessio) was considered null and void. A feature prejudicial to the wife was the so-called praesumptio Muciana: the rebuttable presumption that all the property a married woman possessed was given to her by her husband.^{^[204]}

An expectation normally associated with marriage was that the wife would share her husband's house as well as his status and social rank.^{^[205]} Furthermore, the husband was under the duty to maintain and protect his wife and was not permitted to abandon her or drive her away from the marital house without a properly obtained divorce.^{^[206]}

2.3.4

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

Forms of Marriage: Cum Manu and Sine Manu

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