CASE 147: A Divorced Wife Takes Vengeance
D. 22.3.29.1 (Scaevola libro nono Digestorum)
Mulier gravida repudiata, filium enixa, absente marito ut spurium in actis professa est.
quaesitum est an is in potestate patris sit et matre intestata mortua iussu eius hereditatem matris adire possit nec obsit professio a matre irata facta. respondit, veritati locum superfore.(Scaevola in the ninth book of his Digests)
A man divorced a pregnant woman; she (then) gave birth to a son, whom she, in her ex-husband’s absence, recorded as illegitimate in the public register. The question was raised as to whether he is in his father’s power, and (as a result), should his mother die without a will, whether he can upon his father’s order enter upon this inheritance, the record made by his mother while angry not being held against him.
He (Scaevola) responded that there will still be room for the truth.
1. Separate Statuses. This passage assumes a point implicit in earlier cases and raised explicitly by Gaius (Inst. 1.94): paternal power, unlike both citizen status and freeborn status, depends strictly upon the status and marital relationship of the parents at the moment of conception. That is why the child of a deceased or divorced father can still be fully legitimate and in his or her father's potestas. Compare Case 46.
2. Messy Divorce. As the issue was put to Scaevola, the ex-wife was motivated by a desire to embarrass her husband by declaring her son illegitimate, even at the expense of her own reputation.
But is this her only possible motive? Note that a divorced woman could not abort without her ex-husband's permission (Case 48). Do you see why? Can you draw a connection with this case?3. Son’s Advantage. Under the SC Orphitianum of A.D. 178, the son had an enhanced right to the intestate succession of his mother, whether he was legitimate or not; see Cases 169-170. If he was in someone else's power, however, he needed permission to enter upon the inheritance and the property went to the pater familias in actual fact. How, then, does the inheritance benefit the son, as the questioner in this Case appears to imply it will?
4. Problem of Proof. Scaevola's laconic response (which is typical of his juristic style) shows that what mattered to him was not the official record but whether the ex-husband was actually the boy's father. How realistic is his holding? In the text immediately preceding this one (D. 22.3.29 pr.), Scaevola quotes a rescript of Marcus Aurelius and Lucius Verus (joint reign: A.D. 161-169) affirming the evidentiary value not just of witness testimony but also of letters sent by husbands to wives, provided they are genuine. Does this suggest that the problem of proof was great? Or does it merely confirm that the stakes could be high?