Forms of Union of Marriage in Roman Law

Marriage was an integral part of traditional ancient roman way of life, thus it is no surprise that laws pertaining to the subject were constantly changing and progressing, particularly from the classical era to that of late antiquity. Most scholarly sources available to us today are focused on marriage law in the classical era, and little is said about the development that marriage law underwent throughout late antiquity. Our main source of information when studying such a subject is the Theodesian code; a compilation of laws ordered by emperor Theodosius 2 which compiles all the laws enacted by roman emperors starting from Constantine 1, up until Theodosius himself.

Such a code allows us to gain an insight into the changes that took place in the law throughout ancient roman times, thus giving us the ability to compare and contrast accordingly. As we will come to find out, there are a number of factors which had an impact on the changes that took place in marriage law such as those being environmental or economic, however it can be said that no other factors played as big of a role as the introduction of Christianity in the roman empire.

It is important to note that when studying roman marriage law, most of the records at our disposal deal with marriage law as it existed amongst the elite classes of society. Despite the fact that marriage law did touch upon the subject of marriage law amongst the lower classes, such as for example marriage relating the slaves, soldiers and clerics, it is difficult to determine the extent to which these ancient roman customs were enforced amongst the lower classes of society. The essence of roman law as it existed traditionally boils down to a simple private agreement between the two parties to be married, irrespective of the betrothal, ceremonies or festivities which which precede the marriage procedure. This will be explored in further detail in the section relating to marriage consent. In order for a marriage to be declared valid in ancient roman times, otherwise known as iustae Nuptiae, there was a criteria which needed to be satisfied. Note that the requirements which constituted a valid marriage frequently changed over time depending on the emperor in power.

Firstly, individuals to be married couldn’t be too closely related to one another. For most of the ancient roman period, incest was a punishable crime, and thus marriages which took place between individuals who were second cousins or closer relatives were prohibited from marrying one another. There was a brief concession to this law during the reign of emperor Claudius, who enacted an exception to the law which permitted the marriage between an uncle and his niece; a law known to have been introduced in order to allow him to marry his brother’s daughter. This law was later reversed by emperors Constantantius and Constans, who went as far as to execute anyone who breached this law. The pair took it a step further by nulling marriage which took place between a man and his brother’s former wife. Despite all the laws prohibiting incestuous marriage and relationships between close family members, one cannot exclude the fact that incestuous relationships were common at the time, and were sought especially amongst the upper classes. This is perfectly exemplified by an episode which took place in which the emperor Honorius sought to marry the sister of his first wife as his second wife, but was forced to abandon his plans due to public scrutiny.

It has been suggested that the possible motif for incest amongst the elite of society was to maintain wealth amongst the came closed circle of people. Despite not being considered incest, the law of Constantanius also prohibited the marriage between a woman who’s father had passed away, and her legal guardian. The purpose of this law was to prevent abuse from taking place on behalf of the legal guardian, as the absence of such a law created an environment which facilitated the manipulation of the women’s wealth by her legal guardian in an attempt to bring it under his own family’s control.

Marriage was also prohibited between persons coming from widely differing social classes. Scholars believe this was primarily intended in order to maintain the division that existed between the patrician and plebeian classes. Under roman law, it was clearly stated that a valid marriage could only be ordained by individuals who were in possession of ‘conubium. ’ Unions of any other kind were considered inferior in the eyes of the law. If the husband lacked conubium, the marriage was classified as ‘matrimonium non iustum’, whilst on the other hand if the wife or both parties lacked conubium, the union was known as contuberium, which translated to simply living with each other. The scope of declaring these unions inferior in the eyes of the law was in order to restrict the transfer of property or marriage payments amongst differing social classes.

In order for marriage to be valid, both members had to first be old enough to consummate the marriage. As can be seen from the typical ages for one to get married during roman times, there is no doubt as to whether the male figure in the relationship was old enough for consummation, however the same cannot be said for the female as available sources mostly point at the typical age amongst men to be in their 50’s, whilst women were many a time still in their early teens. However one must note that the typical age required for marriage varied from one district to another, thus it is hard to establish the minimum age required for one to undergo the consummation ceremony. Despite this, betrothal was permitted for girls of a younger age, however the marriage however the marriage wasn’t considered complete until consummation. Thus, for reasons which will be disclosed eventually, it wasn’t in a man’s favour to be in a relationship who was far from the age required for consummation.

Last but not least, consent was necessary in order for a marriage to go through. As will be explored, the element of consent was considered to be an integral part of roman marriage, and was given a significant amount of importance throughout the ancient roman law. We will also see that the perception of consent throughout the years of the empire shifted from initially being perceive as the father’s consent to the marriage of his children, while later on started to be looked upon as the consent of the individuals themselves.

As already mentioned briefly, consent could have referred to the blessing of a direct male ancestor in cases where individuals to be married were still living under the observation of their paterfamilias. If this was not the case, the procedure that conferred depended on the gender. While the male was given the luxury of choosing how own wife, women still required the consent of their legal guardian. One must note that when we speak about consent, it was required by the individuals to be married that not only do they consent to a sexual union, but also to live as married persons; better described by the term ‘affectio maritalis. ’ The jurist Ulpian claimed that if the element of affectio maritalis was missing from ones marriage, he described the situation as mere cohabitation. This goes to show us how highly the element of consent was viewed in roman marriage, not just initial consent, but lifelong. Ceremony and wedding functions acted as public displays of the affectio maritalis that existed between a couple. Knowledge of the union that existed between the two by the couples friends was considered as sufficient evidence of affectio maritalis (C. Th 3. 7. 3. )

The need for consent in roman marriage peaked in a series of laws enacted by emperor Majoran, which emphasise and stressed upon the need for a women’s consent in order for the marriage to go through. Any attempts to coerce the woman into marriage by any means including physical violence were condemned, and the marriage was forbidden irrespective of the consent that may already have been given by her parents (C. Th. 3. 10. 1, 3. 6. 1, and 3. 11. 1). Despite the change in law supposedly bestowing freedom upon women in their choice of marriage partners, it is unclear as to how far these laws were actually implemented. One law clearly requires the consent of her paterfamilias, this clashing with her freedom to pick a partner of her choice. To add onto this, if a women wished to re marry and was younger than the age of 25, she still required the consent of her father and was obliged to abide by his choice in partner unless she found faults in his based on reasonable grounds.

Marriage payments were of vital importance throughout ancient roman times, more commonly referred to as the dowry. Marriage payments were not only seen as symbols of the affectio maritalis, but also of the joining of the two families that later transcended in inheritance. The necessity of the dowry remained intact, so much so that a law of Julian pronounced the giving of a dowry in order for a marriage to be valid (C. Th 3. 13. 2 in 363). The need for a dowry was only rescinded for a brief period of time during the rein of Theodosius 2 and Valentinian 3 in 42, in which it was declared that marriage was still considered valid even in absence of a dowry. However this was short lived as the law was reversed by emperor Majoran based on its absurdity, adding that those married without a dowry “must so be branded with stigma.”

Traditionally, it was ideally the case that women marry once throughout their life time, and remain devoted to their partner forever. This bestowed upon them the title of ‘univerae.’ However, this could not be the case during the reign of Augustus, who incentivised re marriage after the death or divorce of a spouse by imposing penalties which came in the form of inheritance restrictions upon those who opted for celibacy. The maximum period one was allowed to remain single before penalties were imposed was two years, thus as previously mentioned, it was due to this that it wasn’t in the interest of men to be in relationships with girls far below the required age for consummation, as it could be the case that by the time they were old enough to consummate the marriage, his two year allowance would be over thus rendering him the penalties.

This law was ended by Constantine 1 in a law that many viewed as having been derived from his devotion to Christianity. This introduced a culture in which people were opting for a celibate lifestyle, as Christianity started to gain momentum. The fourth and fifth centuries saw an effort being made on behalf of the emperors, to try and return society to the traditional idea of lifelong marriage. This is not to say that divorce and re marriage didn’t exist, however restrictions were placed on one’s ability to re marry. For example in the case of a women who divorced her husband even for valid reasons, she was requied to wait at least five years before re marrying, whilst those who divorced their husbands for frivolous reasons were denied their right to re marry, and faced serious consequences for attempting to do so. This was also applicable to men, so much so that they faced the loss of their new wife’s dowry to their former wife.

However one must point out that the law was less harsh on men, requiring them to only wait two years before re marriage in the case of improper divorce. During the period of Theodosius 1, women who re married before the tempus lugendi was over were condemned. In the words of Theodosius himself, such a woman “shall be branded with the marks of disgrace and deprived of both the dignity and the rights of a person of honourable and noble status. ” This goes on to mean that she lost her rights to any gifts, including betrothal gifts received from her previous husband (C. Th 3. 8. 1 in 381. )