CASE 22: Cohabitation and Marriage

D. 24.1.66.1 (Scaevola libro nono Digestorum)

Virgini in hortos deductae ante diem tertium quam ibi nuptiae fierent, cum in sep­arata diaeta ab eo esset, die nuptiarum, priusquam ad eum transiret et priusquam aqua et igni acciperetur, id est nuptiae celebrentur, optulit decem aureos dono: quaesitum est, post nuptias contractas divortio facto an summa donata repeti pos­sit.

(Scaevola in the ninth book of his Digests)

A virgin (bride-to-be) was led into (her future husband’s) suburban estate two days before the marriage took place there; she stayed in a separate chamber from him. On the day of the marriage, before she crossed to him and before she was received with water and fire, that is, before the wedding celebration, he pro­vided her with ten gold coins as a gift. It was asked whether, when they divorced after having contracted the marriage, the sum that was given can be reclaimed (by him).

He (Scaevola) responded that in this hypothetical case the gift was made be­fore the wedding and (so) cannot be deducted from the dowry (as an invalid gift).

1.      Living in the Same Property prior to Marriage. In this Case, the bride-to-be, evidently for reasons of personal convenience, was led (deductae) into her husbands estate and took up residence there a few days before the marriage ceremony was scheduled to occur; but she lived apart from him during the intervening period. On the day of the marriage ceremony, he gave her some money, and she then “crossed to him and...

2.      Prior Residence in the Same Property. With this Case, compare Ulpian, D. 35.1.15 (= D. 50.17.30 in part): “A legacy was left to a woman under the con­dition: ‘if she had married within the familia.’ The condition is regarded as fulfilled as soon as she is taken as a wife, even though she has not yet entered her husbands bedroom. For it is not sleeping together, but rather agreement, that makes a marriage.” The woman is a freedwoman who can receive the legacy once she has married a fellow freedman. She and her intended are, however, already living in the same household, even though they have not yet slept together. According to Ulpian, when do they become married?

3.      Virginity. The Latin word virgo, frequently used to describe a woman (espe­cially one of respectable status) prior to her first marriage, is hard to translate; but at times (as in the following Case) it clearly does refer to physical virgin­ity, which in any case was a culturally valued quality.