CASE 80: Amicable Divorce
D. 24.1.60.1 (Hermogenianus libro secundo Iuris Epitomarum)
Divortii causa donationes inter virum et uxorem concessae sunt: saepe enim evenit, uti propter sacerdotium vel etiam sterilitatem
D.
24.1.61 (Gaius libro undecimo ad edictum provinciale)vel senectutem aut valetudinem aut militiam satis commode retineri matrimonium non possit:
D. 24.1.62 pr. (Hermogenianus libro secundo Iuris Epitomarum)
style='font-size:8.0pt;line-height:120%'>et ideo bona gratia matrimonium dissolvitur.
(Hermogenianus in the second book of his Epitome of Law)
Gifts are permitted between husband and wife on account of divorce (divortii causa). For it often happens that because of a priesthood or also infertility
(Gaius in the eleventh book on the Provincial Edict)
or old age or health or military service, a marriage is just too hard to continue;
(Hermogenianus in the second book of his Epitome of Law)
and so the marriage is dissolved with goodwill on either side (bona gratia).
1. Divorce Gifts?! As the jurists recognized (Ulpian, D. 24.1.32.10), not all marriages end in bitterness. Hermogenianus (an early postclassical jurist) and Gaius list several reasons why couples might amicably agree to divorce.
Incompatibility, a favorite modern theme, does not figure on their list but perhaps underlies some items on the list. The decision by the jurists to permit gifts divortii causa is not so innocent as it seems, since such gifts might often be made to induce the other party to consent to a friendly divorce; that way, neither husband nor wife ran the risk of being held at fault for the divorce, a finding that could have consequences for the return of the wife's dowry (Case 83). Perhaps considering this possibility, Paul (D. 24.1.12) holds that gifts in consideration of divorce are valid only when made at the time of the divorce, not in contemplation of a future divorce. Is this enough to prevent the potential bad effects of such gifts?2. Was the Roman Law Moral? Evaluate the following: “Conscious of the true limits of law as were the Roman lawyers,... they realized that it is beyond the strength of law to preserve matrimony against the will of the spouses, since law can never compel them to live peacefully together. Law can maintain matrimony in the legal sense, but neither morality nor the community is in the least interested in the existence of a mere legal marriage” (Fritz Schulz).