CASE 17: Marital Affection
D. 24.1.32.13 (Ulpianus libro trigesimo tertio ad Sabinum)
Si mulier et maritus diu seorsum quidem habitaverint, sed honorem invicem matrimonii habebant (quod scimus interdum et inter consulares personas subsecutum), puto donationes non valere, quasi duraverint nuptiae: non enim coitus matrimonium facit, sed maritalis affectio: si tamen donator prior decesserit, tunc donatio valebit.
(Ulpian in the thirty-third book on Sabinus)
If a wife and her husband have for a long time lived apart, but they reciprocally continued to honor the marriage—something that we know sometimes occurs even among persons of consular rank—, I think gifts between them are invalid since their marriage continues. For it is not sexual intercourse that makes a marriage but rather marital affection (maritalis affectio). But if the donor dies first, then the gift is valid.
1. Living Apart. As we have seen, the issue of a marriage’s existence is often important in determining the legitimacy of children. Another area where the issue can arise involves gifts between a man and a woman, since Roman law held, in principle, that a husband and wife could not make valid gifts to one another; and therefore, such a gift could be reclaimed by the giver (see Case 61). In this Case, the couple were living apart and had exchanged gifts. The question, then, is whether they were still married, since, if so, the gifts were invalid. How does Ulpian suggest that this problem should be solved? How is “marital affection,” as Ulpian uses the term, different from the consensus required for marriage?
2. Deportation.
For a more extreme example, see Case 74, in which a wife has been deported, thereby losing her citizenship but not her freedom. Ulpian says her marriage is not necessarily dissolved by deportation, since “nothing stops both the man from keeping a husband’s affection (mariti affectionem) and the woman from her intent to remain a wife (uxoris animum).” How long could the couple remain separated before there is a presumption of divorce? If her absent husband began having sex with other women, would that indicate that he no longer had “a husband’s affection”? If not that, then what?3. Continued Reaffirmation? Does Roman law require, if a marriage is to endure, that the parties must not only consent at its outset but also constantly renew that agreement? Or is it enough that neither actively repudiates their initial agreement? The same ambiguity crops up in legal sources on the contract of partnership (societas), where Gaius (Inst. 3.151) asserts: “Partnership lasts as long as they (the partners) persist in the same agreement (consensus). But when one renounces the partnership, it is dissolved.” In Gaius's view, is their agreement presumed to continue unless and until one party makes an open renunciation?