Requirements for a Valid Marriage

A number of conditions had to be fulfilled before a valid Roman marriage (iustae nuptiae or iustum matrimonium) could take place.

Firstly, it was required that both parties possessed the right to contract a legal Roman marriage (ius conubii).

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.^[178]

Thirdly, the parties had to be capable of intermarriage and this presupposed the absence of certain prohibitions or impediments. Probably the most important of these proscriptions were based on relationship by blood, marriage and adoption. Thus ascendants (adscendentes) and descendants (descendentes) in the direct line could never marry each other. This prohibition was applicable irrespective of whether the relationship at issue rested on cognatio (blood relationship), agnatio (the relationship among persons who were under the potestas of the same paterfa­milias), or adfinitas (the relationship between one spouse and near relatives of the other).^[179] Furthermore, collaterals (collaterales) were not permitted to marry each other if they were too closely related—the parties had to be at least four degrees removed from each other and at least two degrees removed from a common ascendant. This prohibition applied to cognatio, agnatio and adfinitas relationships.^[180] Any marriage concluded contrary to these prohibitions was abso­lutely null and void, and constituted the criminal offence of incest (incestus) attached to severe penalties.^[181]

Moreover, during the course of the centuries a large number of prohibitions against the intermarriage of certain categories of persons evolved from considerations of a social or moral nature as well as related public policy decisions.

A further impediment was derived from the rule that forbade women from remarrying (after the death of their husbands or after a divorce) before the period known as tempus lugendi had elapsed.^[186] This period was initially 10 months but was later increased to 1 year—hence it was sometimes referred to as annus luctus (year of mourning).^[187] One of the main reasons for the introduction of this prohibi­tion was to prevent confusion over the identity of the father of a child born after the husband's death (turbatio or confusio sanguinis). A marriage that ensued within the annus luctus remained valid, but the woman who violated her mourning duties was branded with infamy (infamia) or loss of reputation.^[188]

A further requirement for a valid marriage was that the parties should both be unmarried at the time of the conclusion of the marriage. Bigamy or polygamy was not regarded as a crime, but resulted in loss of honour (infamia)?^[189]

Fourthly, if the parties were alieni iuris (under the potestas of their respective fathers), the fathers' approval of the intended marriage had to be obtained.

Finally, the creation of a valid marriage required the parties themselves to share the agreement (consensus) that they wished to marry, i.e. to enter into a durable monogamous cohabitation aimed at the procreation of children.^[191] The intention of living together as husband and wife (affectio maritalis) distinguished a lawful marriage from a concubinate (concubinatus) or similar temporary relationship. The affectio maritalis could be deduced from the solemn introduction of the bride into the husband's house and the associated religious ceremonies (deductio in domum mariti)?^[192] In the later imperial age, Eastern practices contributed to the emerging custom of composing a written agreement of marriage (instrumentum dotale) that recorded and elaborated details such as the proprietary rights of the parties. However, the instrumentum dotale did not develop into an essential prereq­uisite of marriage.^[193]

2.3.2.1     Matrimonium Non lustum

As previously noted, the terms iustae nuptiae or iustum matrimonium referred to a marriage contracted according to the rules of the Roman ius civile between two persons who had conubium. The term matrimonium non iustum (or iniustum), on the other hand, was used to denote a marriage between two persons one or both of whom did not possess the right to contract a legal Roman marriage (ius conubii).^[194] Such a marriage involved a union between two foreigners (peregrini) either or both of whom did not have conubium, or between a Roman citizen and a foreigner without the ius conubii.

In matrimonia iniusta, the parties did not have the capacity to contract a regular Roman marriage and so the legal effects of such marriage were lacking even though all the other social features of marriage were present such as the intention to be married and the aim of producing children.

With respect to the status of children, the general principle was that where the parents possessed the ius conubii and were lawfully married their children acquired the status of the father at the time of conception (a rule of the ius civile). In all other cases, the children acquired the status of their mother at the time of birth (a rule of the ius gentium).^{[195] [196]}

2.3.3