CASE 82: Divorce and the Dowry
Tituli ex Corpore Ulpiani 6.6-7
(6) Divortio facto, si quidem sui iuris sit mulier, ipsa habet rei uxoriae actionem, id est dotis repetitionem.
quod si in potestate patris sit, pater adiuncta filiae persona habet actionem rei uxoriae: nec interest, adventicia sit dos an profecticia. (7) Post divortium defuncta muliere heredi eius actio non aliter datur, quam si moram in dote mulieri reddenda maritus fecerit.(Excerpts from Ulpian’s Writings)
(6) After a divorce, a wife herself, if she is sui iuris, has the action on a wife’s property (actio rei uxoriae), that is, a claim for return of the dowry. But if she is in a father’s power, the father, accompanied by the daughter, has the action on a wife’s property; it does not matter whether the dowry is adventitious or profecti- tious. (7) If the wife dies after the divorce, her heir is given the action only if her husband has delayed in returning the dowry to the wife.
1. The Wife Sues. Although this Case states the law correctly, one thing it does not adequately emphasize is that, no matter the form of the dowry, after a divorce the wife is the primary plaintiff. This point is explained by Ulpian (D. 24.3.2.1): where the woman is in the power of a paterfamilias, the dowry is thought of as belonging to them jointly, so that her father cannot sue for it without obtaining her consent. However, by a rescript of Caracalla, it was decided that her consent should be presumed unless she knew of the lawsuit and actively opposed it. As Ulpian says (ibid.
2): “If the daughter is not present, we must hold that this (the lawsuit) is not brought in accord with her will, and the father must provide security that she will ratify it; for if she is sane, we require that she know (of the proceeding) so that she not appear to oppose it.” Why might a wife be unwilling to sue her ex-husband over the dowry?2. The Wife Delays in Suing. Pomponius, D. 24.3.9: “If the wife has delayed in recovering the dowry, her husband should be liable only for deliberate misconduct (dolus malus), not also for (unintentional) fault (culpa), so that he not be forced by his wife's act to cultivate her land in perpetuity. But the fruits that he acquires are returned (to her).” Here the husband is holding dowry property to which his former wife is now entitled; her failure to act in a timely fashion (called mora, “delay,” in Roman law) results, not in her losing her rights through waiver, but rather in her suffering the “penalty” of his reduced duty of care for the property. Is this the best way to handle a situation of this kind? Does it make sense that the husband should no longer be liable for carelessness that results in harm to the property? Does the rule provide sufficient incentive for a woman to act quickly in reclaiming her dowry?