CASE 78: Formal Requirements?
D. 24.2.2.1, 3 (Gaius libro undecimo ad edictum provinciale)
(1) In repudiis autem, id est renuntiatione comprobata sunt haec verba: “tuas res tibi habeto,” item haec: “tuas res tibi agito.”...
(3) Sive autem ipsi praesenti renuntietur sive absenti per eum, qui in potestate eius sit cuiusve is eave in potestate sit, nihil interest.D. 24.2.9 (Paulus libro secundo de Adulteriis)
Nullum divortium ratum est nisi septem civibus Romanis puberibus adhibitis praeter libertum eius qui divortium faciet. libertum accipiemus etiam eum, qui a patre avo proavo et ceteris susum versum manumissus sit.
(Gaius in the eleventh book on the Provincial Edict)
(1) In repudiations, that is, in the renunciation (of marriage), these are the accepted words: “Have your own property.” Likewise, “Take care of your own property.”. ..
(3) It makes no difference whether renunciation is made to the other party while he or she is present or while absent through a person who is in that party’s power or in whose power he or she is.
(Paul in the second book On Adulteries)
No divorce is confirmed unless seven adult Roman citizens have been summoned, as well as a freedman of the person who is going to divorce. By “freedman,” we will understand also a person manumitted by his father, grandfather, great-grandfather, and other male descendants or ascendants.
1. “Some Fixed Form of Words.” In Case 76, the second son of the man from Spain was in legal hot water because his father had not used a specific formula to repudiate his first wife. The phrases that Gaius recommends in this Case are widely attested elsewhere and were traditional. Gaius says these phrases are “accepted”; does he also mean that they, or some close variant, were required for a valid divorce? Legal sources apparently do not go that far. When the two parties are apart, it was usually enough for one to send to the other an unambiguous repudiation: remittere nuntium or the like. Although sometimes it appears that a messenger carried the repudiation orally, more often it is fairly obvious that it was written. But when the couple are living together in the husbands house, the husband is frequently described as simply “expelling his wife from the house” (expellere uxorem domo: Ulpian, D. 25.2.11 pr., who also envisages the reverse situation) or “sending his wife away” (dimittereuxorem: e.g., Paul, Coll. 4.3.5,4.12.5 and 7), without any indication that a specific formula was first used or indeed that anything whatsoever was done beyond the application of raw force. Even in a society where divorce does not involve oversight by governmental institutions, what factors militate for and against requiring some sort of specific formula?
2. Seven Witnesses. This passage from Paul is the only classical source describing a considerably more formal process: the summoning of seven qualified witnesses, before whom a declaration of intent to divorce is evidently recited. Despite the universal language in which Paul's rule is couched (“No divorce is confirmed unless.. .”), he is writing about the lex lulia de adulteriis, the adultery law, and this may be significant. The adultery law, it will be recalled, very strongly encouraged a husband who discovered his wife in adultery to divorce her (Case 53), and in consequence a clear, legally conclusive mechanism for effecting divorce was urgently required; it may well be that the ceremony described by Paul was statutorily created to serve such a purpose.
Is a narrow interpretation of the passage supported by the requirement that a freedman of the divorcing party be present? (The freedman was presumably charged to deliver news of the renunciation to the other spouse.) See also Ulpian, D. 38.11.1.1: “The lex lulia de adulteriis treats a divorce as ineffective unless it was made in a specific way.” Does this refer to all divorces or (perhaps more plausibly) just to those occurring in the immediate context of the adultery statute? A few other sources mention required ceremonies; of these, the strongest is Ulpian, D. 24.1.35: “If a divorce was not made in accord with the statutory protocol (secundum legitimam observationem), gifts made after such a divorce are void since the marriage is not held to be dissolved.” However, it is unclear what “protocol” Ulpian refers to.3. Must Notice Be Served? Must the other party receive, or at least know of, the repudiation? The Gaius fragment suggests not, at least to the extent that a divorce seems to occur when just the affected party's pater familias is notified. Still more to the point is Ulpian, D. 24.2.4: in dealing with the case of a wife who goes mad, Ulpian follows Julian in holding that “a mad woman can be repudiated because her position is analogous to that of a person unaware (of the repudiation).” But if the other party does not need to receive the repudiation, what purpose would it serve? Simply to indicate the firm intent of the divorcing spouse? See also Ulpian, D. 23.2.45.5; Diocletian and Maximian, C. 5.17.6 (A.D. 294): “Even though the repudiation document is neither handed over nor known to the husband, the marriage is dissolved.” Is this related to the Roman principle of unilateral divorce?
4. At Least Try to Give Notice? In the parallel case of renouncing a betrothal (see Case 28), the Emperors Valerian and Gallienus held (C.
5.17.2; A.D. 259): “If your daughter's betrothed has been away traveling for three years, and she thinks there is no point in waiting longer, she is free to abandon hope of this union and to marry (another man) so as not to lose the opportunity of marriage; for while he was present, she could have given him notice if she had wished to change her mind.” Are the emperors saying that notice would normally be given? If this is true in the case of betrothal, would it also be true for marriage?5. Changing Your Mind. Papinian (D. 24.2.7) describes a man who sent a written repudiation but then changed his mind before the letter was delivered. What is the outcome? The marriage continues, holds Papinian, “unless the recipient knew of the change of mind and (nonetheless) wished to dissolve the marriage; for then the marriage was dissolved by the recipient.” What does this suggest about the legal nature of a written repudiation? If the recipient did not know of the senders change of mind but went forward on the assumption that the marriage was over, would the recipient then be responsible for causing a divorce?