4. MARRIAGE

Main characteristics. There are few Roman institutions which differ so fundamentally from their modern counterparts as marriage.

In modern English law a marriage is only valid if the parties, being capable of marrying (i.e. being sane, not within the pro­hibited degrees of relationship, and not below the permitted

¹ This had, however, one disadvantage: the rights of succession which belonged to anyone who manumitted a person in mancipio or a slave, and also, if the son were impubes, the right of tutela (see below, pp. 90 ff.), would accrue to the man of straw. It was therefore usual for the man of straw to mancipate the son back to the father who would then himself make the manumission.

²     See below, p. 249.                                                 ³ See below, pp. 261 ff.

age), go through certain formalities. Roman law imposed similar conditions as to capacity to marry (to which were added the specifically Roman requirements of conubium and, if either of the parties, no matter what his age, were in patria potestas, of paternal consent), but subject to these conditions all that was required for a valid marriage was a manifestation of a common intention to be married.

In modern English law, though the old rule that husband and wife were in law one person has been almost entirely swept away, marriage still produces a number of legal consequences, especially the ‘conjugal rights’ of cohabitation, the husband’s duty of support, and in some circumstances the husband’s liability on his wife’s contracts, but Roman law knew none of these. In particular, ‘conjugal rights’ could mean nothing in a system which admitted an unrestricted right of unilateral divorce.

It is significant that marriage finds a place in Gaius’ arrangement only as a source of patria potestas. The validity or invalidity of a marriage was relevant primarily, as we shall see, to the status of the children, though it was relevant for some other purposes also. Thus, if a union were not a marriage, any property contributed by the woman could not be subject to the rules governing dowry (dos),' and conversely the rule forbidding gifts between husband and wife² could have no application.

¹ See below, pp. 87 ff.

² See below, p. 90.

Manus. The free consensual union described above was the normal marriage under the Empire, but until the end of the Republic, and to a dwindling extent thereafter, marriage might result in a very different relationship. The wife was said to be in the hand (manus) of her husband. Manus was closely similar to patria potestas. The wife was in the position of a daughter to her husband and consequently if he were alieni iuris she was a grand­daughter to his father. The effects of the creation of manus were in general the same as those of adrogatio if she were sui iuris, or of adoptio if she were not. Her property, if any, vested in her husband or his paterfamilias, and she had the same rights of succession to him as did her children.

Manus came into existence in three ways. The usual method of creating it was coemptio, a form of mancipatio of the woman to her husband, differing from an ordinary mancipatio in that she was thereby placed in his manus and not in mancipio. It is pre­sumably a survival of the marriage by purchase which is com­monly found among primitive peoples.

¹ For the consequences of this in the law of succession, see below, pp. 247 ff. ³ Below, pp. 122 IT.

Indeed the possibility of ‘free’ marriage was only preserved by a provision of the Twelve Tables that a wife could prevent the establishment of manus by absenting herself for three nights in each year. But the whole institution was obsolete in Gaius’ day. Manus could then only be created expressly by coemptio, and was probably even so very rare.

Usus makes clear the nature of manus as something added on to marriage: the wife is married for a year before she passes into manus. In the same way, at least in the mature law, the marriage itself could be broken by repudiation by the wife, but she would still be in manu until her husband emancipated her, though she could require him to do so.

Iustae nuptiae and non-Roman marriage. Marriage in Rome, as throughout the ancient world, was a matter of personal law, and therefore a Roman marriage (iustae nuptiae} could exist only if both parties were citizens or at least peregrines with conubium. Whether a union was iustae nuptiae or not was important pri­marily because it determined the status of the children. And this it did in two ways. First, as we have seen, children born from iustae nuptiae were in the potestas of the father (except when he was a peregrine, for although he had conubium he was still incapable of patria potestas}; and, secondly, their status as citizens or not was determined by the civil law rule, that they took the status of their father, and not by the rule of the ius gentium, that they took the status of their mother.

Concubinage. Marriage differed from a merely casual or sur­reptitious liaison in the existence of an intent both to enter into a permanent union and to give to that union the social and legal consequences of marriage. Already in the Republic,

¹              This rather paradoxical result was, however, reversed by a lex Minicia (date unknown), which made the children in this case also peregrines. The law govetning such unions between persons without conubium, and in particular the distinction between them and a merely casual union, presents difficulties which cannot be adequately discussed here.

however, there existed an intermediate type of union in which the former intent was present but not the latter. For example, a man might enter into a permanent union with his freedwoman without wishing to give her the social and legal recognition accorded to a wife. Such a union necessarily lacked even the limited legal consequences which followed from marriage, but was accepted as a social fact and was termed concubinage. (The morganatic marriage later served a similar purpose in the more limited society of the German princely families, but did have legal consequences.)

Concubinage acquired sharper outlines in the early Empire as an unintended consequence of legislation which forbade marriage between persons of widely differing rank (members of senatorial families with freedmen and freedwomen, any free­born citizen with a woman of ill-repute).

The later Empire however, under the influence of Chris­tianity, was hostile to concubinage as an unregulated union, and tended to make of it a left-handed marriage, subject to some of the rules of a full marriage. In particular it became exclusively a monogamous alternative to marriage, permitted only within the same limits of age and relationship.

Legitimation. Out of concubinage there grew the historically important institution of legitimation. Until the time of Con­stantine the only way in which an illegitimate child could be brought into his father’s potestas and otherwise legitimated was for the father to adrogate him, and this would not always be possible—for example, if the father had other (legitimate) children. Constantine, out of a desire to encourage those living in concubinage to marry, enacted that such a marriage should legitimate any children already born. This enactment dealt only with existing unions, however, and legitimation by sub­sequent marriage did not become a regular institution until shortly before the time of Justinian. Moreover it still applied only to children born in concubinage, and the parents must have been capable of a lawful marriage at the time of concep­tion.

Canon law adopted the institution from the imperial law, but since it did not recognize concubinage it extended the benefit of legitimation by subsequent marriage to the children of any union which was not adulterous or incestuous. From the Canon law this passed into the systems of modern Europe, the English excepted. For legitimation, like adoption, was unknown to English law until introduced by statute in 1926.

Legitimation was also granted by imperial rescript in cases where legitimation by subsequent marriage had become im­possible by, for example, the death of the mother. This pre­rogative power passed to the rulers of medieval and early modern Europe, and traces of it may still be found in some continental systems of law.

Divorce. Since Roman marriage depended for its existence merely on the parties’ living together with the intention of being married, it could equally be brought to an end by the free will of either or both. And just as no formality was needed for the beginning of a marriage, so also none was needed for its termination. All that was necessary was some evidence of intention. We hear indeed of the uttering of customary words or the sending of a document, just as we hear of customary words and ceremonies at the beginning of a marriage, but none of these was legally necessary. (Augustus did however require, at any rate in some cases, a declaration in the presence of seven witnesses.)

Until the later years of the Republic this total freedom of divorce was kept in check by public opinion and by the Roman habit of consulting a family council before making any impor­tant decision. There was, moreover, the possibility of Censorial sanctions. Thus, in 307 b.c. a Senator was deprived of his dignities for divorcing his wife without consulting a family council. By the last century b.c., however, divorce had become a matter of course, at least among the upper classes, for whose habits alone we have any evidence. The respectable Cicero put away his wife after thirty years of marriage in favour of a young and wealthy bride, and Cato of Utica had no compunction in remarrying his divorced wife when she was left a wealthy widow by her intervening husband. Augustus himself had divorced his first wife before marrying Livia; and a famous inscrip­tion of the time (Laudatio Turiae), in praise of a wife who had died after forty-one years of marriage, records that such marriages, ending in death and not in divorce, were rare. Seneca, fifty years later, remarks that women reckon the years not by the names of the consuls, but by those of their husbands.^[XXXV]

So fundamental was this unfettered freedom of divorce that even an agreement not to divorce was void as being incom­patible with the Roman idea of marriage. The only practical deterrent to divorce was provided by the rules governing the return or retention of the wife’s dowry.² A man who thought nothing of divorce might still hesitate to lose the dowry, and conversely, if there were children, the husband’s right to retain a proportion of the dowry might give the wife pause for thought. But such motives would have no force if there were a wealthier match in sight.

With the advent of Christianity as the official religion of the Empire, a radical change in the attitude to divorce might have been expected. Consent was indeed the foundation of Christian as of Roman marriage, but for the Christian the effect of consent was exhausted in the creation of the marriage, leaving no room for the Roman idea that what had been created by agreement could be dissolved by contrary agreement or by disagreement. Such was the Christian teaching, and the Empire was formally Christian, but it embraced within its borders a very hetero­geneous population many of whom evidently did not live up to the new teaching (ecclesiastical penalties against remarried divorcees are common). Even the most forcefully Christian Emperors did not venture wholly to uproot the old law, but sought rather to restrict its application by imposing increasingly severe penalties on divorce by either party unless for a reason recognized by the legislator. And even unjustified divorce, though penalized, was effective.¹ More important still, and more surprising in a Christian context, divorce by mutual consent remained quite untouched by the hand of the legislator until 542. In that year Justinian did forbid it, but the old ways evidently died hard, for within five years of his death the pro­hibition had been repealed.

In this respect, however, Roman law died without issue. The marriage law of western Europe was to be the Canon law, and the Canon law, though in other ways it often thought in Roman terms, inevitably rejected the Roman view of divorce. Nor is the divorce of modern secular systems of law at all comparable. A modern divorce is an act of the court and not, as in Roman law, of the parties.

Matrimonial property. Marriage, and still more the termination of marriage, raises problems concerning the property which each party brings into the union, and the solutions to these problems are usually deeply rooted in the customs of each community. Hence it is that in countries such as Germany, or even France, which achieved unity of law only fairly recently, the diverse customary solutions, or ‘regimes of matrimonial property’, still remain for the choice of the intending spouses or their families, and make this part of the law extremely complicated. A recur­rent feature is some form of joint ownership, coupled however with the vesting of a wide power of administration in the hus­band. The rule of the old Common law, on the other hand, was that husband and wife were one person and that the property of the wife vested to a large extent in the husband.

Neither of these principles accorded with the classical Roman idea of‘free marriage’.² In principle, as in present-day English law, each party retained unfettered ownership of his or her property, but this entire separation was considerably modified

* But for the peccant wife for whom Justinian decreed lifelong confinement in a convent the distinction had little interest.

²Marriage with manus is here ignored, and it is assumed that neither husband nor wife is in patria potestas.

by the institution of dowry (dos) and, in the later law, by the complementary practice of a gift by the husband to the wife (donatio ante nuptias, gift before marriage).

Dos underwent considerable changes in the course of Roman history. In the early law the husband acquired full ownership of all dotal property, but by the time of Justinian, though he was in theory still owner, he had for practical purposes little more than a right to the income from it so long as the marriage lasted. This transformation of dos corresponded to the increased freedom of women and still more to the enormously increased frequency of divorce.

In the early law dos was merely a contribution from the wife’s side to the expenses of the household, and so long as divorce was uncommon it was not intolerable that this contribution should become wholly and irrevocably the property of the husband, particularly as the children’s rights of succession were to their father and not to their mother. Moreover the wife, or whoever provided the dowry, could stipulate expressly for the return of the dowry at the end of the marriage. With the increase in divorce in the late Republic, however, dos came to serve a second purpose, to provide for the wife in the event of the break-up of the marriage, and there accordingly developed an action (actio rei uxoriae) by which the wife could, without the need for any express provision, require the return of the dowry if the marriage terminated either by divorce or by the death of the husband. In this way the husband, though still owner of the dos, was required to account for his management of it, and conversely was entitled to retain fixed proportions of it in certain circumstances. In particular, if the divorce were due to the fault of the wife or her father he could retain one-sixth for each child up to three. The wife’s right was, however, only in personam¹—a right against the husband for the return of the value of the dos at the end of the marriage. In the meantime he could validly alienate any part of it, and the wife therefore took the risk of his eventual insolvency. Her position in this respect was, however, improved in two directions. Augustus forbade and declared void any alienation without the wife’s consent of Italic land² forming part of the dowry, and any mortgaging of it even with such

¹ For the distinction between rights in personam and rights in rem, see below, pp. 99 ff.                                                            ² See below, p. 105, n. 4. consent; and in the case of insolvency of the husband the wife was given priority over other unsecured creditors. She could thus in all circumstances be sure of the return of her Italic land, and in regard to other property ran the risk only of her husband’s assets’ being insufficient to meet the claims both of his secured creditors and herself.

Justinian, perhaps under the influence of Greek law which gave the ownership of the dowry to the wife, still further weakened the husband’s rights. The rule as to the inalienability of Italic land was extended to land everywhere, and, further, alienation was no longer permitted even with the wife’s consent. The husband’s right to retain part of the dowry was abolished, and the whole reverted in all circumstances, including now the death of the wife, except that if the husband divorced the wife for good cause or the wife divorced the husband without cause the dowry might be forfeit. Moreover, the wife was now preferred even to secured creditors. For Justinian gave her a tacit hypothec (mortgage implied by law)¹ over all her husband’s property, and this hypothec, though at first having priority only from the date of marriage, was later allowed to override even securities created before marriage. This has prompted the remark that Justinian having first ruined the credit of married men went on to ruin that of bachelors also.

In the legislation of the later Empire there appears the institution of donatio ante nuptias, complementary to dos but deriving from the practice of the Eastern provinces. This was a gift made by the husband in contemplation of marriage and intended to provide for the wife in the event of her being left a widow or being unjustifiably divorced. Under Justinian it became a symmetrical counterpart of dos: if there was a dos there must be a donatio of the same amount. And both donatio and dos could be either made or increased even after marriage, the former being therefore renamed donatio propter nuptias. More­over the property was administered by the husband and there was therefore commonly not even a formal conveyance, but merely a promise of such conveyance on the termination of the marriage. The wife’s right to the donatio, like her right to the return of her dos, was protected by a tacit hypothec over the husband’s property, though without priority.

¹ See below, pp. 152 f.

Dos and donatio propter nuptias, when made or increased after marriage, were the principal inroads on the rule that gifts between husband and wife were void, a rule based on the same consideration as was invoked to justify a somewhat analogous rule in English law, ‘lest they be kissed or cursed out of their money’.¹ In almost all other respects husband and wife were in their legal relationship to each other wholly independent persons.

Donatio propter nuptias had little subsequent history, but the essential Roman system of separation of property qualified by dos still survives in modern Europe, though less commonly than the various customary systems of community of property.