CASE 104: Divorce: The Emperor Pius Intervenes
Paulus, Sententiae 5.6.15
Bene concordans matrimonium separari a patre divus Pius prohibuit... nisi forte quaeratur, ubi utilius morari debeat.
(Paul in the fifth book of his Sentences)
The deified Emperor Pius prohibited a father from breaking up a happy marriage,... unless perhaps question should arise as to where the person might with greater advantage reside.
1. Limits on Potestas. The Case evidently refers to the assertion of potestas through one of two interdicts granted by the praetor, whereby a paterfamilias could reclaim a child held by a third party (see Cases 107-108). It appears that the Emperor Antoninus Pius (reign: A.D. 138-161) was the first to restrict this paternal claim. Why might this change have been considered desirable? The legal texts suggest that in classical law a child-in-power could divorce without explicit permission from his or her pater familias. How does that square with the rule given here?
2. Residual Right. The last portion of this Case suggests that the father might still act if it was in the child's best interest. Who made that determination? Would another, more advantageous marriage be enough to satisfy the exception?
3.size=1 face="Times New Roman"> A Different Rule? Paul (Frag. Vat. 116) discusses a case in which a father, against his daughters wishes, sends a declaration of divorce to his son-in-law; the father then reclaims the dowry that he had provided for the marriage (see Case 30).
Paul responds: “The marriage, indeed, is legally dissolved by this very act (of sending the declaration); but if she is unwilling, the father cannot separate his daughter from her husband, nor can he reclaim the dowry unless his daughter (also) agrees.” Can this decision be reconciled with the one above? Is it possible that Paul might distinguish between divorce and the physical separation of the couple? Or is the crucial issue whether the father has good cause for his declaration? As to the daughter, if her marriage has ended, what is her status if she remains with her spouse?4. Yet Another Rule? Finally, consider Paul, Sent. 2.19.2: “For persons in the power of a pater, marriage cannot be legally contracted without his will (sine voluntate eius), but a marriage once contracted is not dissolved; for consideration of the public good outweighs the convenience of private individuals.” Is Paul presuming here that the father does not have good cause? How is Paul attempting to balance “the public good” and “the convenience of private individuals”? What weighs on either side of this balance?