CASE 105: A Father Changes His Mind

C. 5.17.5 (Impp. Diocletianus et Maximianus AA. et CC. Scyrioni)

(pr.) Dissentientis patris, qui initio consensit matrimonio, cum marito concordante uxore filia familias ratam non haberi voluntatem divus Marcus pater noster religio­sissimus imperator constituit, nisi magna et iusta causa interveniente hoc pater fe­cerit.

(The Emperors Diocletian and Maximian to Scyrio; A.D. 294)

(pr.) The deified Marcus, our predecessor and a most scrupulous emperor, estab­lished that if a father initially granted consent to a marriage and (then after the marriage) changed his mind, his will (voluntas) is deemed legally ineffective when his daughter-in-power is living in harmony with her husband. But (the outcome is) otherwise if the father acted on the basis of a great and just reason.

(1)     Still, no provision of law requires that an unwilling woman return to her husband.

(2)     He (the father), to be sure, does not have it within his discretion to bring about the divorce of a daughter who is freed from his power.

1.      Reason. Diocletian relies on a statutory pronouncement (constitutio) of Marcus Aurelius (A.D. 161-180). What might qualify as a “great and just reason” vali­dating a fathers breakup of a marriage? Consider the following possibilities:

•      he learns that his son-in-law lied about his status;

•      his son-in-law lied about his wealth and is bankrupt;

•      his son-in-law is far less wealthy than he made himself out to be;

•      he learns that his son-in-law is cheating on his daughter;

To what extent does Marcus Aurelius's constitutio seem like a logical develop­ment from the prohibition of his immediate predecessor, Antoninus Pius (Case 104)? It is conceivable that Marcus Aurelius was broadening a rather narrow ruling by Pius.

2.      Father’s Discretion.

D. 24.1.32.19-21 (Ulpianus libro trigesimo tertio ad Sabinum)

(19)     Si socer nurui nuntium miserit, donatio erit irrita, quamvis matrimonium concordantibus viro et uxore secundum rescriptum imperatoris nostri cum patre comprobatum est: sed quod ad ipsos, inter quos donatio facta est, finitum est mat­rimonium. (20) Proinde et si duo consoceri invicem donaverint, idem erit dicen­dum, si invitis filiis nuntium remiserint, inter ipsos irritam esse donationem. in hac autem donatione inter soceros facta mors desideranda est eius qui donavit constante matrimonio et iure potestatis durante: idemque et in his qui sunt in eorum potestate. (21) Si consocer consocero donaverit et alter eorum vel uterque copulatos emancipaverit, debet dici donationem ad orationem non pertinere et ideo infirmari donationem.

(Ulpian in the thirty-third book on Sabinus)

(19) If a father-in-law has taken formal steps to break up his daughter-in-law’s marriage, a (previous) gift (from her to him) will be invalid, even though the em­peror (Caracalla) and his father have affirmed the (continuing) validity of a mar­riage where husband and wife are in harmony. But as far as the parties to the gift are concerned, the marriage has ended.

(20)      Similarly, if two fellow fathers-in-law make gifts to one another, the same rule will apply if they take formal steps to end the marriage even though their children are unwilling; so gifts made between them are invalid.

(21)      If one father-in-law makes a gift to another and one or both of them emancipate the children united in marriage, the gift must be classed as irrelevant in terms of the legislative initiative (oratio) and so is invalid.

1.      No Gifting. An old rule held that spouses could not make valuable gifts to each other or, if they were in a fathers power, since they themselves could own no property, to the holders of potestas over each: see Cases 61-65. The motives were both idealistic and practical, effectively protecting patrimony for transmission to their children. This rule was amended by a legislative pro­posal (oratio) of Severus and Caracalla, subsequently ratified by the Senate, that permitted gifts, if made during a marriage and never rescinded, to remain valid if the giver died while still married; see Case 65. What is the point of this change in law? In the event of divorce, the old rule still held, so that, in order to be valid, the gift had to be confirmed by the giver after the divorce. Does this seem likely for a daughter-in-law whose father has tried to break up her marriage?

2.      Rescript. The text mentions a rescript of Severus and Caracalla that affirmed the validity of a harmonious marriage against the attempt by the paterfamilias to break it up. Is this rule consistent with those attributed to Pius and Marcus in the previous two Cases? Note that here the holder of potestas simply takes formal steps, by sending a notification of divorce, rather than relying on the interdicts mentioned in Case 107.

3.      Meddling In-Laws. The next paragraph (20) extends the rule to two med­dling fathers-in-law. Was the intent aimed at discouraging such behavior in the case of a happy marriage?

4.      Emancipation. In the context of release of one or both children from potestas (21), why does this make the gift irrelevant to the oratio and thus invalid?