Marriage

class=a5 style='text-indent:0cm'>Marriage in Rome was not a simple institution. There were a variety of different types of marriage that all had varying degrees of recognition and legal impact; and the institution underwent drastic changes in both social and legal senses throughout the ages.

Notwithstanding these changes, the institution of marriage always held a central place in community life as it was the foundation of the familia, the pivot of Roman society. Its cardinal importance is reflected in the famous definition offered by the jurist Modestinus that is recited at the beginning of the title on marriage in the Digest: “Marriage is the joining of a man and a woman in a general communion of life by virtue of the communication of divine and human law”.^{^[279]} It is important to note at the outset that for a considerable period of Roman history, marriage was not so much a legal institution as it was a simply factual relationship recognized by society. In later times, the influence of Christian dogma and ethics moulded the gradual perception of marriage as a legal relationship with a strong religious character.

Most marriages were preceded by an engagement or betrothal (sponsalia), consisting of reciprocal promises by the future husband and wife to contract a legal marriage with each other at a later date.^{^[280]} In early times the betrothal assumed the form of an enforceable agreement that was usually concluded between the respective patresfamilias by means of the contract of sponsio. Before the beginning of the second century bc, however, the promises ceased to be actionable.^{^[281]} Nevertheless, betrothal entailed certain legal consequences. From the time it was concluded relatives of the pair were considered to be in-laws, and a sexual involvement by the woman with another man amounted to adultery.

By the fourth century ad it became customary for the fiance to give the woman a gift signifying his earnest intention to marry. This was forfeited if he refused to proceed with the marriage, and was repaid to him in multiple if the breach came from the other side.^{^[282]} An engagement could be terminated by mutual consent of the parties or upon the death of one of them. It was likewise terminated if it was revealed during the course of the engagement that the parties did not meet the conditions for a valid marriage.

There were two forms of marriage: cum manu and sine manu. In the marriage cum manu the wife fell into the power (manus) of her husband or his paterfamilias, if the latter was still alive. In the marriage sine manu, on the other hand, the wife remained in the power (potestas) of her own paterfamilias or, if she had been sui iuris before the marriage, she remained independent.

Marriage cum manu could be celebrated in one of three ways: confarreatio, coemptio and usus.^{^[283]} Confarreatio was a religious ceremony that created both manus and the marriage itself.^{^[284]} It took its name from the cake of spelt (farreus panis) that was eaten by the parties in the temple of Jupiter. The relevant ceremony was conducted under the supervision of a priest of Jupiter (flamen dialis) and the chief priest (pontifex maximus). By the early Principate age confarreatio had largely become obsolete, but it possibly remained in existence until the close of the fourth century ad, when Emperor Theodosius abolished pagan sacrifices.

Coemptio 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)^{^[285]} Like confarreatio, coemptio created both manus and the actual marriage.

This type of marriage ceremony appears to have fallen into disuse as early as the first century ad and it disappeared not latter than the third century ad.lang=EN-US> A wife who was not married with either of the above ceremonies came into the manus of her husband by usus if she cohabited with him for a year without interruption. This method was analogous to the acquisition of property by prescription. A woman not wishing to come under her husband’s power in this way was required to stay away from the matrimonial home for three successive nights in each year (absentia trinoctium).^{^[286]} As already noted, the principal effect of a cum manu marriage 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 she became alieni iuris and her property was transferred to her husband or his paterfamilias^{^[287]} Everything that she subsequently acquired accrued immediately to her husband or his paterfamilias, with the result that she never had property of her own.

Originally nearly all Roman marriages were cum manu but during the later republican epoch, as family relationships became less rigid and women acquired a greater degree of independence, marriage sine manu evolved as the principal form of marriage.^{^[288]} In the imperial age, the latter became virtually the only form of marriage. The marriage sine manu was a formless transaction. This means that for the creation of such marriage nothing more was necessary than the intention of the parties to live together as husband and wife (affectio maritalis). However, while ceremonies were not essential to the validity of the marriage, celebrations including bridal feasting and songs and the leading of the bride to her husband’s home were usual. Such celebrations provided evidence that marriage (not concubinage)^{^[289]} was intended.

The sine manu marriage had little impact on the status of the parties. The wife did not fall under the power of her husband or his paterfamilias. If she had been sui iuris before the marriage, she remained so and retained her own property. Everything that she subsequently acquired accrued to her own property. If she had been under patria potestas before her marriage, 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^{^[290]}; 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 number of conditions had to be fulfilled before a valid civil law marriage (iustae nuptiae or iustum matrimonium) could take place.^{^[291]} Firstly, it was required that both parties possessed the capacity to contract a Roman marriage (ius conubii). Thus, only marriage between Roman citizens or with someone from a state that had been granted the right of intermarriage with Romans constituted a valid marriage. Secondly, both parties had to be of marriageable age. This usually meant that the man had to be at least 14 years old and the girl at least 12.^{^[292]} If the parties were alieni iuris, the consent of the patresfamilias was required, as was the consent of the parties, although in early times the wishes of the woman were legally irrelevant. A paterfamilias could withhold consent for a reasonable cause, but otherwise provision was made for the granting of the requisite consent by a magistrate.

Where the woman was sui iuris, the consent of her tutor was needed when the marriage was to be cum manu. Finally, there were to be no impediments. The most important impediments derived from relationship by blood, marriage and adoption. Thus, ascendants (adscendentes) and descendants (descendentes) in the direct line could never marry each other.^{^[293]} Furthermore, collaterals (collaterals) were not permitted to marry each other if they were too closely related, but the forbidden degrees varied through the ages.^{^[294]} Originally, second cousins were not permitted to marry, but by the first century bc first cousins could. Uncles and nieces, aunts and nephews could not intermarry, but a senatus consultum exceptionally permitted marriage with a brother’s daughter so that Emperor Claudius (ad 41-54) could marry Agrippina.^{^[295]} The latter exception was repealed in the fourth century ad.^{^[296]} Any marriage concluded contrary to these prohibitions was absolutely null and void, and constituted the criminal offence of incest (incestus) entailing severe penalties.^{^[297]}Moreover, during the course of the centuries a large number of prohibitions against the intermarriage of certain persons evolved from considerations of a social or moral nature as well as related public policy decisions. Differences in respect to social class or rank constituted one of the most important impediments. Marriage between patricians and plebeians was forbidden by the Law of the Twelve Tables but this prohibition was finally removed by the lex Canuleia of 445 bc. The lex lulia of Augustus forbade members of the senatorial class to marry freedpersons as well as those connected with the theatrical profession.^{^[298]} Furthermore, marriage was forbidden between Roman provincial officials and native women of the province, and, in later times, between Christians and Jews.^{^[299]} Marriages concluded in conflict with these prohibitions were deemed null and void, and the children born from such marriages were treated as children without a father (spurii).^{^[300]}

From an early period, a general custom and moral duty for the father required him to bestow upon the bride a fortune or dowry (dos) when she entered into marriage.

By the time of Justinian this moral duty had developed into a statutorily recognized legal duty.^{^[301]} As a general rule, the bride’s father supplied the dowry, although the relevant duty could also be discharged by the bride herself (if she was sui iuris) or another member of her family or even an outsider. The primary purpose of the dowry was to serve as a contribution to the necessary expenses a marriage involved (ad onera matrimonii sustinenda), such as those requisite for the maintenance of the common household and the upbringing of children. This emphasis adapted over time to influences such as Christian humanitarian principles, and the chief function of the dowry came to be the protection of the wife and children after the marriage was dissolved by the death of the other spouse or by divorce.

A marriage could be dissolved in various ways: by the death, loss of liberty or loss of citizenship of either party,^{^[302]} or by divorce (divortium)—the latter existed as the most common form of ending a marriage. In early times, divorce was permitted to the husband only on specific grounds: adultery, poisoning a child and tampering with keys. If the husband cast his wife off for any other reason he had to give her half of his property, the remainder being forfeited to the goddess Ceres. This continued until the late third century bc, when it was recognized that a marriage could be dissolved if one or both parties did not want to be married anymore for whatever reason. No action or formalities were required for divorce unless the marriage was cum manu, in which case a reverse ceremony (diffareatio or remancipatio) was needed.^{^[303]} In later times, Christian emperors disapproved of unjustified one-sided dissolutions of marriage and imposed financial penalties on the party who divorced in this manner, but the marriage was still dissolved. Good causes motivating divorce included adultery, promiscuous behaviour, attempt on life, sorcery and abuse.^{^{New Roman">[304]}} Justinian introduced a law prohibiting divorce by mutual consent, except for the purpose of living lives of monastic chastity,^{^[305]} and also stipulated certain additional grounds for the justifiable repudiation of marriage by one of the parties.^{^[306]}

3.2.6

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Source: Mousourakis G.. Roman Law and the Origins of the Civil Law Tradition. Springer,2015. — 339 p.. 2015

Marriage

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