CASE 40: Can a Wife in Manus Divorce?
Gaius, Institutiones 1.137-137a
(137) desinunt in manu esse, et si ex ea mancipatione manumissae fuerint, sui iuris efficiuntur.
(137a) nihilo magis potest cogere, quam et filia patrem. sed filia quidem nullo modo patrem potest cogere, etiam si adoptiva sit: haec autem repudio misso proinde compellere potest, atque si ei numquam nupta fuisset.(Gaius in the first book of his Institutes)
(137) cease being in manus, and if they are manumitted after this mancipation, they are made sui iuris. (137a) can no more force (to emancipate her) than a daughter can force her father. But there is no way that a daughter can force a father, even if she is adopted; while the woman can force her husband after giving notice of divorce, just as if she had never been married to him.
1. Emancipation and Divorce. Children are released from the potestas of their father through a formal process called emancipation (see Cases 155-158). As this Case indicates, a pater familias could use the same process of emancipation in order to free his wife from manus (see also Gaius, Inst. 1.118). Is this equivalent to divorcing her? The text of this Case has been heavily restored, and many of its details are of modest concern to us; but Gaius mainly refers to manus marriage by the ceremony of coemptio, which he regards as the only surviving form of manus marriage (see Case 19). The issue in section 137a is whether a wife can force her husband to release her by going through a counter-ceremony that undoes the effects of coemptio. Gaius first states that she cannot but then holds that she can if she first sends notice that she is divorcing him. Is this likely to have been the original rule? Note that in any case the former pater familias of the wife had no power to force a divorce after she entered into manus, since his patria potestas has already been broken through the marriage.