CASE 107: Breaking Up Is Hard to Do
D. 43.30.1.5 (Ulpianus libro septuagensimo primo ad edictum)
Si quis filiam suam, quae mihi nupta sit, velit abducere vel exhiberi sibi desideret, an adversus interdictum exceptio danda sit, si forte pater concordans matrimonium, forte et liberis subnixum, velit dissolvere? et certo iure utimur, ne bene concordantia matrimonia iure patriae potestatis turbentur.
quod tamen sic erit adhibendum, ut patri persuadeatur, ne acerbe patriam potestatem exerceat.D. 43.30.2 (Hermogenianus libro sexto luris Epitomarum)
Immo magis de uxore exhibenda ac ducenda pater, etiam qui filiam in potestate habet, a marito recte convenitur.
(Ulpian in the seventy-first book on the Edict)
If a man’s daughter is married to me, and he wishes to lead her away with him or should seek to have her produced for him, must an affirmative defense be raised against the interdict if, for instance, the father wishes to break up a happy marriage, perhaps even one enhanced by children?
We follow the fixed principle that truly happy marriages are not to be disturbed by the exercise of a father’s power. Nevertheless, this rule is to be carried out by persuading the father not to employ his patria potestas harshly.
(Hermogenianus in the sixth book of his Epitome of the Law)
Indeed, as to producing and leading away a wife, it is more proper that a father, even one who has a daughter in his power, be sued by her husband.
1. Interdicts. As with the ruling of Pius (Case 104 above), this case concerns the praetor's grant of two interdicts, one to have children produced that a person claims are in his potestas and a second effectively granting custody upon his proof of the claim: see the Discussion on Case 108.
We learn here that an affirmative defense (exceptio) was allowed to defeat the assertion of potestas in the case of a happy marriage, where the father evidently had no good grounds for demanding its dissolution. Why does it matter if there were children from the marriage?2. Persuasion. From the Cases just examined, would you have predicted Ulpian's final point about persuading the holder of potestas? Why do you think the jurist insists on this? Suppose the father refused to be persuaded?
3. The Husband Sues. Hermogenianus is an early postclassical jurist active in the reign of Diocletian (A.D. 284-305). The right of a husband to sue his father-in-law for recovery of his wife is first attested in this period (see also Diocletian, C. 5.4.11). How big a change is this from classical law?