CASE 76: Divorce by Remarriage?
Cicero, De Oratore 1.183
Quid? quod usu memoria patrum venit, ut pater familias, qui ex Hispania Romam venisset, cum uxorem praegnantem in provincia reliquisset, Romaeque alteram duxisset neque nuntium priori remisisset, mortuusque esset intestato et ex utraque filius natus esset, mediocrisne res in contentionem adducta est, cum quaereretur de duobus civium capitibus et de puero, qui ex posteriore natus erat, et de eius matre, quae, si iudicaretur certis quibusdam verbis, non novis nuptiis fieri cum superiore divortium, in concubinae locum duceretur?
(Cicero in the first book of his On the Public Speaker)
In the memory of our fathers it happened that a paterfamilias left a pregnant wife in the province of Spain and moved from there to Rome, where he married another woman without sending notice (of divorce) to his first wife. He died intestate, leaving a son born from each woman. Was the matter at issue trivial when question (subsequently) arose about the civil standing of two persons: not only the boy born from the second woman but also his mother, who, if the verdict was that divorce from an earlier wife takes place (only) through some fixed form of words and not by means of a new marriage, was transformed into the equivalent of a concubine?
1. Is She His Wife? Cicero, the foremost orator of the late Roman Republic, is here recounting an actual legal case that arose probably during the second half of the second century B.C. The two sides can be imagined: as plaintiff, the son by the second wife (if she is a wife), seeking legitimacy and half his father's estate; as defendant, the son by the first wife, trying to succeed his father as sole heir.
Is it fair to deduce from the tone of Ciceros narrative that the son of the second wife probably won his lawsuit? What was the legal issue in this trial? Cicero says that the lawsuit caused intense debate among the jurists (De Or. 1.238). Presumably, some jurists believed that the man could not divorce his Spanish wife without “some fixed form of words,” which would have formalized his intent to divorce and also, in most cases, have given notice to his spouse. But what did the opposing jurists believe? That there were no formal requirements whatsoever for divorce? Or, more moderately, that a unilateral act or declaration clearly inconsistent with a marriage is sufficient to end that marriage even when no attempt is made to notify the affected spouse (see Case 78)? Or what? In their view, was the new marriage only a proof that divorce had occurred, or did it actually bring about the divorce?2. Bigamy? Would the situation be different if the man had shuttled back and forth between his two households in Rome and Spain? Yes, since that would clearly be bigamy (see the Discussion on Case 11), and the second marriage would then be void.
3. Is She an Adulteress? A woman heard that her absent husband had died. She married another man, and her first husband then returned. This case, which again appears to be a real one, is discussed by Papinian (D. 48.5.12.12), who says that if the woman was genuinely deceived, something that should be determined from her behavior, then she did nothing wrong; but if she simply took advantage of a rumor because she wanted to remarry, then she should be punished, apparently as an adulteress. This decision would seem to indicate that, in the eyes of the law, she remained married to her first husband both before and after she remarried.
Papinian was active in the late second century A.D., at least three centuries after the lawsuit described by Cicero. How much had Roman law changed in the intervening period? Does it seem likely to you that the lex lulia on adultery could have caused some of this change?4. A Home Wrecker. A married woman was on a trip when she met a man who took her into his house as his wife and then sent a repudiation (notice of divorce) to her husband. According to Papinian (D. 24.2.8), the Emperor Hadrian (reign: A.D. 117-138) condemned the man to relegation for three years. What was his offense: bigamy, adultery, neither, or both?
D. 24.2.3 (Paulus libro trigesimo quinto ad edictum) (= D. 50.17.48 in part)
Divortium non est nisi verum, quod animo perpetuam constituendi disen- sionem fit. itaque quidquid in calore iracundiae vel fit vel dicitur, non prius ratum est, quam si perseverantia apparuit iudicium animi fuisse: ideoque per calorem misso repudio si brevi reversa uxor est, nec divortisse videtur.
(Paul in the thirty-fifth book on the Edict)
Divorce does not take place unless it is genuine, made with the intent of establishing a permanent separation. So something that is either done or said in the heat of anger is not confirmed until, because of its persistence, it was clear that a mental judgment occurred. Therefore, if a wife sent a repudiation in anger but soon thereafter returned (to her husband), she is held not to have divorced.
1. Is It Final This Time? This Case, like many others, insists on the importance of at least one spouse having a deeply felt intent to divorce.
In Paul's opinion, is the intent to establish “a permanent separation” only a necessary condition for divorce or also a sufficient one? That is, once a spouse manifests such an intent, does the divorce occur automatically or is something more, such as actual physical separation, also required? The jurists have some difficulty distinguishing transient quarrels from genuine repudiations. Where a couple separates and then reunites, Marcellus (D. 23.2.33) rules that this is “the same marriage” if not too much time has elapsed, if neither party has remarried someone else, and above all if the dowry has not been returned. Does this suggest that he is trying to measure depth of intent from subsequent acts? If so, would even the most absolute and harshly worded repudiation necessarily be enough in itself to bring about a divorce?2. style='font-weight:bold'>Reconciliation Gifts. A man gave gifts to his divorced wife in order to induce her to return; she did so but then divorced him again. Can she keep the gifts? According to Javolenus (D. 24.1.64; disputed text), early imperial jurists were divided. Some thought that the gifts were valid if the first divorce was genuine but invalid if it was a sham (why might this be suspected?). Others thought that the first divorce was valid and the gifts unreclaimable only if she did not marry a third party or if she remained unmarried for long enough that it was clear that her first marriage had been dissolved; otherwise, the gifts were ineffectual. How do these two approaches differ in interpreting the situation? Which approach seems more plausible? On either approach, does it seem likely that in some situations it would be unclear to external observers, and perhaps also to one or both of the spouses, whether a divorce had actually occurred?
3. Maecenas and Terentia. The rule in this Case was invoked in a famous instance of suspected false divorce, that between Maecenas (a wealthy advisor to the Emperor Augustus) and his wife Terentia; see Javolenus, D. 24.1.64.