CASE 79: Free-Form Divorce
Fragmenta Vaticana 106-107 (Paulus libro octavo Responsorum)
(106) Convenit in pacto dotali, ut divortio facto sextae liberorum nomine retinerentur: quaero, an discidio interveniente sextae retineri possint.
Paulus respondit secundum ea quae proponuntur posse. (107) Item quaesitum est, si vir repudium misit et eandem reduxit eaque mulier absente viro de domo eius discesserit, an aeque sextae retineri possint ex priore pacto. Paulus respondit, si verum divortium intercessit et ad eundem rursum reversa non renovato pacto manente dote divortit, sextas liberorum nomine ita demum retineri posse, si culpa mulieris divortium intercessit.(Paul in the eighth book of his Responses)
(106) In a dowry agreement the parties arranged that in the event of divorce, a sixth (of the dowry) be retained for each child. I ask whether sixths can be retained when a separation (discidium) has occurred. Paul responded that on the facts proposed, they can.
face="Book Antiqua">(107) Again, it was asked whether sixths can be retained on the basis of the earlier agreement if a man sent a repudiation and (then) remarried the same woman, and this woman, while her husband was away, departed from his home. Paul responded that if, after a true divorce, she returned again to the same man without renewing the agreement but leaving the dowry (itself) still in place, and she (then) divorced (a second time), sixths can be retained for each child only if the divorce occurred because of the wife’s fault (culpa).
1. Is Separation Divorce? In section 106, the specific legal problem is the enforceability of the dowry agreement.
One issue that may be relevant is whether a separation (discidium) amounts to the “divorce” required in the agreement; but Paul seems to have no difficulty on this score, and in other legal texts discidium is commonly treated as a synonym for “divorce” (e.g., Papinian, D. 48.5.12.13; Paul, D. 49.15.8). But are we then to conclude that in Roman law divorce is essentially identical with a prolonged separation, so long as the requisite mental intent to divorce is present? Reread Case 17, which deals with a husband and wife who have long been separated but exhibit reciprocal marital affection; they are held to be still married. But in their case, why would the question of divorce have even come up, unless separation itself was regarded as one leading indicator that a divorce had occurred? That is, could separation play much the same role in proving divorce that deductio might play in proving marriage (Case 20)? In sum, are we perhaps justified in thinking of Roman divorce, like Roman marriage, as less an event than a process? (In the end, the separation issue is probably not of great significance in section 106 of this Case; Paul's main concern is that the agreement provides for surrender of one-sixth of the dowry for each child, without regard to which party is at fault for causing the divorce. See below.)2. Departing from the Home. In section 107, the legal problem changes: the husband sent a repudiation, but the couple were then reconciled and remarried, and the dowry from the first marriage was brought over into the second (quite common, and favored by law: Paul, D. 23.3.30). There were two distinct marriages (Paul rules out the possibility of a sham divorce; see Case 77), so the remaining issue is whether, when the wife subsequently leaves her husband, her agreement from the first marriage also survived into the second. Paul concludes that since the agreement was not independently renewed, it does not survive, and that the husband can therefore retain sixths for the children only if his wife was responsible for the second divorce (see Case 82).
But what is extraordinary about section 107 is not this relatively perfunctory legal analysis but the description of the second divorce: while the husband is absent, the wife simply packs her bags and leaves, apparently without any effort to notify her husband of her intentions. Yet Paul unhesitatingly describes this as a divorce, and he does not seem troubled by this aspect of the Case. Should he be?3. Where Do We Go from Here? Try to sum up the position of the classical jurists on the issue of divorce. If you were a lawyer in Rome, how would you advise a client who inquired about the most effective way to go about divorcing a spouse? What difficulties would you warn the client of? It was not until the mid-fifth century A.D. that written notice of a repudiation clearly came to be required in Roman law. See, for instance, C. 5.17.8 pr. (Theodosius and Valentinian; A.D. 449): “We ordain that while lawful marriages can be formed by agreement (consensus), once contracted they are not dissolved unless a repudiation is sent. Because we favor the children, dissolution of marriage should be more difficult (than entry into marriage).” Is Christian influence necessarily the only, or even the best, explanation for such an innovation? Apart from Christian views of marriage, does it seem reasonable to hold that more is at stake in a divorce than just the immediate desires of husband and wife? In general, postclassical law, starting with Constantine (C.Th. 3.16.1; A.D. 331), is extremely hostile to unilateral divorce but is far more tolerant of consensual divorce. To what extent is there a different societal stake in these two ways of divorcing?