CASE 26: Betrothal and Marriage
D. 24.1.32.27 (Ulpianus libro trigesimo tertio ad Sabinum)
Si quis sponsam habuerit, deinde eandem uxorem duxerit cum non liceret, an donationes quasi in sponsalibus factae valeant, videamus.
et Iulianus tractat hanc quaestionem in minore duodecim annis, si in domum quasi mariti inmatura sit deducta: ait enim hanc sponsam esse, etsi uxor non sit. sed est verius, quod Labeoni videtur et a nobis et a Papiniano libro decimo Quaestionum probatum est, ut, si quidem praecesserint sponsalia, durent, quamvis iam uxorem esse putet qui duxit, si vero non praecesserint, neque sponsalia esse, quoniam non fuerunt, neque nuptias, quod nuptiae esse non potuerunt. ideoque si sponsalia antecesserint, valet donatio: si minus, nulla est, quia non quasi ad extraneam, sed quasi ad uxorem fecit et ideo nec oratio locum habebit.(Ulpian in the thirty-third book on Sabinus)
If a man has a fiancee and then takes her as his wife at an age when this was not permitted, let us examine the validity of gifts made during this “betrothal.” Julian discusses this question in the case of a woman less than twelve years old who had been led into her “husband’s” home before maturity He says that she is betrothed, even though she is not a wife.
But the more correct view, the one that seemed preferable to Labeo and was approved by me and by Papinian in the tenth book of his Questions, is that if a betrothal actually preceded, it continues even though the man who led her in thinks she is already his wife. But if it did not precede, there is no betrothal since one did not occur; nor is there a marriage, because marriage was impossible. And so if a betrothal preceded, the gift is valid; (but) if not, it is invalid, since he made it as if to his wife and not to a stranger; and thus the legislative proposal (of the Emperor Septimius Severus) will be inapplicable.
1. Is a “Marriage” Actually a Betrothal? The problem here proceeds from the situation in Case 7. A girl below the minimum age for marriage has undergone a marriage ceremony and is now living with her “husband.” At law, she cannot be a wife yet. But, in the interim, is she at least his betrothed? Julian answers yes, apparently understanding the situation as a “constructive” betrothal (a purely legal fiction); but Ulpian, following the lead of Labeo and Pa- pinian, holds that an actual betrothal must take place. Which position seems better to you? If the girl is not betrothed, what is she? Ulpian uses the phrase loco nuptae (in the position of a wife) to describe her situation (D. 23.1.9). In any event, the underage girl's relationship with her “husband” has some legal validity. For instance, money given for her dowry cannot be recovered unless a “divorce” intervenes before she reaches legal age (Neratius, D. 12.4.8), but like an ordinary betrothed woman, she enjoys privileged status against other creditors when it comes to recovering any property offered as a dowry (Ulpian, D. 42.5.17.1).
2. Validity of the Gift. Betrothed couples or their families often exchanged gifts, and these gifts were presumably most often made in anticipation of the impending marriage. Roman law holds that when these gifts are made simply out of generosity, they are irrecoverable; but if they are made with the express or implicit condition of marriage, they are often recoverable if the marriage does not take place. For example, Papinian (Frag. Vat. 262) holds: “Property given outright to a betrothed woman is not recovered if the marriage does not ensue.
But if gifts are made for the purpose of contracting a marriage relationship (adfinitatis contrahendae causa) and the betrothed man is at fault for sending a repudiation, they are also not recovered. But the situation should be understood in this way unless, for recalling the gifts, a condition is included of not executing the contract if the marriage is not joined.” What might the purpose of such premarital gifts be? The “proposal” (oratio) referred to in the last sentence of this Case is a famous initiative of Septimius Severus in A.D. 206; the emperor allowed an invalid gift between spouses to become valid if the donor died before revoking it (see Case 65).3. Donatio ante Nuptias. Dowry, bestowed by the brides family, was normal in classical Roman marriages; see below, Section 2. However, out of the custom of exchanging betrothal gifts there gradually developed an institution that in the later Empire had considerable importance: donatio ante nuptias, a “prenuptial gift” made by the husband to the wife, who then incorporated it within her dowry; it was intended mainly for the support of her and her children during marriage. The earliest clear reference is in a rescript of Septimius Severus (C. 5.3.1; A.D. 193-211), but a roughly contemporary fragment of Paul (D. 6.2.12 pr.) cites an earlier rescript of Antoninus (reign: A.D. 138-161) that may be relevant. Does the rise of this institution suggest a shift in the balance of power during the delicate interfamily negotiations preceding marriage? Donatio ante nuptias eventually became a requirement for marriage in the eastern half of the Roman Empire, although it existed alongside dowry.