Matters Relating to Matrimonial Property: Dos and Donatio Propter Nuptias

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.

The dos could consist of any form of property: corporeal or incorporeal, movable or immovable (e.g., money, land, an inheritance, or any legal act that enlarged the parties' estate).^[210] The relevant property transferred to the possession of the husband who, in principle, could use it as he saw fit.^[211] Since the early principate period, however, the husband's rights over the dos were increasingly restricted to such an extent that his ownership over this property had become mainly formal in Justinian's era. Thus, the husband was required to preserve the dos as far as possible and to restore it to the person who supplied it or transfer it to his wife and children on termination of the marriage.

We may now consider the question of what became of the dos after dissolution of the marriage. From an early period it was recognized that if the marriage was dissolved the dos (or a portion of it) had to be returned to the wife or her family in accordance with the purpose, noted above, of protecting the wife and children under such circumstances. Under the law of Justinian, if the wife died or if the marriage was dissolved by divorce caused by the wife's misconduct the dos became the property of the children while the husband retained the use of it.^[213] If, on the other hand, the marriage was terminated by the death of the husband or divorce not caused by the fault of the wife, the dos had to be returned to the wife.^[214]

The return of the dos could be claimed by an actio ex stipulatu if such return was guaranteed by stipulatio^[215] between the husband and the provider of the dos. Since the republican period, the restoration of the dos could be enforced in the absence of a stipulatio by the praetor granting the actio rei uxoriae to the wife or, in some instances, her father.^[216] Since this action was based on good faith, the judge could take the circumstances of the particular case into account to formu­late a decision.^[217] By the time of Justinian, the actio rei uxoriae had been replaced by the actio dotis (also known as actio de dote).^[218] Furthermore, the wife was accorded a privileged tacit hypothec over her husband's property to secure the return of her dowry. As a result, her action directed at the return of the dos was given priority over the claims of any creditor of her husband.

The later imperial age featured the development of another institution that originated in the East: the donatio propter nuptias (gift on account of marriage). Closely linked with the dos, this encompassed a donation given by the husband to the wife with the purpose of providing for her and their children if the marriage was dissolved by divorce or by the husband's death.^[220] In time, the tendency developed to regard the donatio propter nuptias as serving the interests of the children rather than those of the wife. Thus, the position of a wife who re­married after the death of her husband was merely that of a usufructuary with respect to the donation until the actual ownership over it accrued to the children.^[221]

The rules concerning the restitution of the donatio propter nuptias in the case of termination of marriage by divorce or the husband's death were very similar to those applicable to the dos. Furthermore, just as in the case of the dos, the husband had the right of disposal with respect to the donation during the marriage but this right was subject to several limitations almost identical to those relating to the dos.

2.3.5