Marriage

The Roman jurist Modestinus defined marriage as “a union between a man and a woman, and partnership for the whole life, a community of human and divine law” (D. 23.2.1). Roman marriage (matrimonium or iustae nuptiae) was essentially monogamous, heterosexual, and intended to be lasting.

As a social fact, marriage had almost no effect on the legal status of the parties or on their property. No ceremony was legally necessary for contracting a marriage. No symbolic acts were legally required, no formalities, no

cooperation of a magistrate, not even official registration. It was customary, however, for a marriage to begin with a solemn bringing of the bride to the bridegroom’s house, accompanied by religious ceremonies (deductio in domum mariti).

Marriage was very often preceded by betrothal, especially among the Roman elite. Bare consent, even by proxy, sufficed to constitute betrothal (Ulpian, D. 23.1.4). Like betrothal, marriage was also concluded by the consent of the spouses, by the free and informal agreement of the parties: “consent, not consummation, constitutes marriage,” as Ulpian affirmed (D. 50.17.30). If the would-be spouses were under paternal power, the consent of their fathers was also necessary. All that was legally required for a man and a woman to marry was the agreement to live together with the intention of establishing an enduring union as husband and wife (affectio maritalis).

The procreation of legitimate children was the main social aim of marriage. For this reason, the minimum age for contracting marriage became fixed at twelve for women and fourteen for men - i.e., the age of sexual maturation.

Probably in order to avoid mixing properties, Roman law banned the giving of gifts between spouses (Ulpian, D. 24.1.1.). This rule persisted until Justi­nian’s law, with some exceptions (e.g., living for free in the other’s house; Pomponius, D. 24.1.18). Prenuptial gifts were permitted, however, as were gifts intended to be transferred upon the donor’s death (mortis causa).