CASE 100: A Father's Consent
D. 23.2.34 pr. (Papinianus libro quarto Responsorum)
Generali mandato quaerendi mariti filiae familias non fieri nuptias rationis est: itaque personam eius patri demonstrari, qui matrimonio consenserit, ut nuptiae contrahantur, necesse est.
(Papinian in the fourth book of his Responses')
For the making of a marriage, it is not an acceptable legal basis that a general commission was given (to a third party) to find a husband for a daughter in her father’s power. Therefore, it is necessary to the contracting of a marriage that he (the husband) be personally presented to her father for his consent to their marrying.
Hypothetical Situation.
A father commissioned a marriage broker to find an acceptable husband for his daughter; the broker then located a prospective husband who met the fathers criteria and was acceptable to the daughter. Is anything further required from the father in order for the marriage to be valid?
1. Meeting Her Old Man. As Papinian makes clear, in ordinary circumstances the father is not construed as consenting to his daughters marriage unless he at least knows her prospective husband. (For the use of marriage brokers, see Discussion 3 on Case 24.) How much more is required? Must there be a formal presentation? Must the father clearly assent to the marriage, or is it enough if he simply “takes notice” of the prospective husband? What if he had met him some time ago but not recently? Must he express consent at the wedding as well? Assess this reconstruction of the law (from P E.
Corbett): “It would merely be necessary, if any question arose, to show that the pater, knowing the man and aware of the marriage, had raised no objection.” In any event, manifestation of parental consent could be very casual; for instance, no signed document was required (Severus and Caracalla, C. 5.4.2).2. A Son Wishes to Marry. This Case concerns a daughter. Would you anticipate greater or lesser rigor in the case of a son in his fathers power? An adult son might be expected to enjoy more independence; on the other hand, his marriage and eventual offspring have potential consequences for the household of the paterfamilias. Roman sources do not make clear what the classical rule was for sons, but their discussion of what happens when the pater familias is insane (Case 101) implies that parental consent was more or less strictly required for sons, at least by fairly clear inference from the fathers conduct. This is also consistent with an early postclassical decision of Diocletian (C. 5.4.12; A.D. 285) reaffirming a son's right to marry whom he wishes “provided that in contracting marriage your father consents.”
3. What If Parental Consent Was Not Given? The consequences could be dire. Paul (D. 1.5.11) gives the following example: A woman was in her fathers power; she entered into a marriage without his knowledge and conceived a child; her father then died still unaware of the putative marriage. The child is held to be illegitimate even if it was born only after her fathers death; and so the marriage is also plainly invalid before then. In the materials that follow, examine how the jurists found ways to mitigate this harsh rule.
4. Consent after the Event.
While his father was away, Lucius Titius, a son in his fathers power, married Septicia and received a dowry from her father. Titius's father later returned and lived in proximity to his son, evidently without expressing either approval or disapproval of the marriage, until his son died. Is this enough to validate the marriage? Paul (in Frag. Vat. 102) says that a father who agrees to a marriage “even after the event” (etiam postea) makes the marriage valid and the dowry binding; and the father in this case, by not objecting, had apparently agreed. As it seems, this marriage is validated retroactively, back to when it was contracted and the dowry given. Would the outcome have been different if the couple had married while Titius's father was present? Probably not. The Emperor Alexander Severus (C. 5.4.5; A.D. 222-235) addresses a woman petitioner who had married a man in his father's power, but obviously without obtaining her father-in-law's clear consent; after her husband's death, the woman need not be concerned about a challenge to her child's legitimacy so long as her father-in-law had known of the marriage and had not expressly objected.5. A Father’s Consent to Betrothal. According to Paul (D. 23.1.7.1), betrothal requires consent from the same persons as does marriage; that is, a father's agreement is required for the engagement of a child in his power. But betrothal is not a binding arrangement (see Chapter II.B.1), and accordingly the requirements are interpreted laxly. Thus, a daughter's consent to betrothal is often presumed from her failure to object (Case 25). Conversely, says Paul (citing Julian): “a father is always held to grant consent to (the engagement of) his daughter unless he should openly refuse it.” Why is the jurist so ready to presume the consent of the pater familias? Is the fathers interest adequately protected?
6. Consent of Relatives.
A sui iuris woman of legal age, no longer in the power of her father, could marry as she pleased (see Paul, D. 23.2.20). Still, it is likely that, especially for young women, older adults often played a role in choosing a husband; thus, for instance, the Emperor Septimius Severus (C. 5.4.1; A.D. 199) refers to a quarrel between a womans guardian, her mother, and her relatives over the best choice. The woman's guardian (see Chapter VB.1) was probably involved because his consent was required to constitute a dowry from her property. More interesting is the participation of relatives, which apparently became formalized during the later Empire for women under twenty-five (C. 5.4.18, 20; A.D. 371, 408-409). Earlier, a letter of Pliny the Younger (Epistulae 1.14) vividly illustrates the intervention of relatives to find a suitable spouse for a woman.