CASE 74: A Daughter Is Deported
D. 48.20.5.1 (Ulpianus libro trigensimo tertio ad edictum)
Quod si deportata sit filia familias, Marcellus ait, quae sententia et vera est, non utique deportatione dissolvi matrimonium: nam cum libera mulier remaneat, nihil prohibet et virum mariti affectionem et mulierem uxoris animum retinere.
si igitur eo animo mulier fuerit, ut discedere a marito velit, ait Marcellus tunc patrem de dote acturum. sed si mater familias sit et interim constante matrimonio fuerit deportata, dotem penes maritum remanere: postea vero dissoluto matrimonio posse eam agere, quasi humanitatis intuitu hodie nata actione.(Ulpian in the thirty-third book on the Edict)
But if a daughter-in-power is deported, Marcellus says, and his view is also correct, that the marriage is not at once dissolved by the deportation. For since the woman remains free, nothing stops both the man from retaining a husband’s affection (mariti affectio) and the woman from intending to remain a wife (uxoris animus). So if the woman is of the view that she wishes to divorce her husband, Marcellus says that her father can then sue on the dowry. But if she is a mater familias and is deported while the marriage continues, the dowry stays with the husband; but afterward, when the marriage is dissolved, she can sue (for return of the dowry), and on grounds of kindness the action is treated as arising today.
1. Deportation. This criminal penalty involves perpetual banishment accompanied by seizure of all property, loss of Roman citizenship, and confinement to a definite place, but not loss of freedom. Deportees could hope only for imperial amnesty.
Does it make sense to hold that a marriage can continue despite the near obliteration of a spouses legal personality? Paul (D. 24.3.56) states that marriage ends with deportation, just as it would with captivity or enslavement. But others may have believed that the slim chance of amnesty made it worth holding that the marriage was not automatically dissolved—so, for instance, Ulpian, D. 24.1.13.1 (quite probably interpolated, however). Thus, a rescript attributed to the Emperor Alexander Severus (C. 5.17.1; A.D. 229) states: “Marriage is not dissolved by deportation... if the circumstances into which the husband fell do not alter the wife's affection (uxoris adfectio).” Which is the better solution? Does the answer depend, at least in part, on the importance that law attaches to the continuation of marriage as socially desirable?2. “Grounds of Kindness.” The meaning of the last sentence is not entirely clear, and later alteration of the wording is suspected; but evidently a sui iuris wife would have difficulty exercising her right to divorce while in captivity. The issue here is whether her rights to the dowry are protected until she returns. In the wording as preserved, why does the fact that a woman is a mater familias result in her maintaining this much of her status after she is deported? Deportation is a serious punishment; women convicted of adultery, for instance, were not deported but only “relegated” (internally exiled), usually to an unpleasant place.
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