CASE 75: Free Divorce
C. 8.38.2 (Imp. Alexander A. Menophilo)
Libera matrimonia esse antiquitus placuit. ideoque pacta, ne liceret divertere, non valere et stipulationes, quibus poenae inrogarentur ei qui divortium fecisset, ratas non haberi constat.
(The Emperor Alexander to Menophilus; A.D. 223)
Long-standing tradition holds that marriages are free. So it is settled that agreements preventing divorce are invalid, and stipulations imposing penalties on the party who divorced are not considered licit.
1. The Freedom to Be Alone. Roman law continually emphasizes the right of parties to make and break marriages as they wish; compare Case 41 (“The Principle of Noninterference”). The parties are also not allowed to try to prevent divorce by obligating themselves for the future through penalty clauses. Why should this be so? Could it be argued that even if the state itself has no strong interest in keeping couples together against the will of one or both of them, individual couples should still be allowed to create and enforce lasting unions between themselves? More broadly, as a matter of logic or of public policy, does it necessarily follow that if marriage is “free” in the sense that its formation rests on a consensual basis, divorce must also be “free” in the sense that either party can end the marriage more or less at will? Do you agree with the following point (from Mireille Corbier, in Beryl Rawson, Marriage, Divorce, and Children): “The principle of the dissolubility of the matrimonial bond is a consequence of the consensual nature of marriage.” Does the Emperor Alexander agree?
2. Capacity to Divorce. Under the Augustan marriage legislation, a freedwoman who married her ex-master was unable to marry someone else unless her patron first renounced his right to remain married to her (Case 14).
The statute, however, did not prevent her, if she wished, from separating herself permanently from him, and thereby effectively divorcing him (Ulpian, D. 24.2.11 pr.). On the other hand, a spouse who goes mad is incapable of divorce (see ibid. 4, with Case 60), obviously because the required will is missing.3. Fault. Although both parties have virtually unrestricted power to divorce, the notion of fault (culpa) is not missing from Roman law. A party who repudiates a marriage without cause, or who furnishes a just occasion for divorce by the other party, may lose valuable rights in relation to the dowry; see Case 83.