CASE 83: Retention on Moral Grounds
Tituli ex Corpore Ulpiani 6.9-10, 12-13
(9) Retentiones ex dote fiunt aut propter liberos aut propter mores aut propter impensas aut propter res donatas aut propter res amotas.
(10) Propter liberos retentio fit, si culpa mulieris aut patris cuius in potestate est divortium factum sit: tunc enim singulorum liberorum nomine sextae retinentur ex dote, non plures tamen quam tres.... (12) Morum nomine graviorum quidem sexta retinetur, leviorum autem octava. graviores mores sunt adulteria tantum, leviores omnes reliqui. (13) Mariti mores puniuntur in ea quidem dote, quae a die reddi debet, ita ut propter maiores mores praesentem dotem reddat, propter minores senum mensum die. in ea autem, quae praesens reddi solet, tantum ex fructibus iubetur reddere, quantum in illa dote quae triennio redditur repraesentatio facit.(Excerpts from Ulpian’s Writings)
(9) Retentions from a dowry occur (for five reasons:) either because of children, because of morality, because of expenses, because of gifts, or because of removal of property. (10) Retention occurs because of children if the divorce came about through the wife’s fault (culpa)style='font-weight:bold'> or that of the father in whose power she was; for then a sixth is retained from the dowry for each child up to a maximum of three..
(12) On the basis of serious immorality a sixth is retained, but an eighth for less serious instances. Only adultery counts as serious immorality; all the rest is less serious. (13) The husband’s immorality is punished in the case of a dowry that must be returned from a (given) day, as follows: for serious immorality he returns the dowry at once; for less serious, in six months’ time. In the case of a dowry that should be returned at once, he is ordered to return from the fruits as much as the payment made for a dowry returned over three years.
1. Fault (Culpa). Classical divorce itself was fault free, in the sense that no allegation of misconduct was required in order to effect a divorce. Things were different when it came to reclaiming the dowry, at any rate if there were children. The rule stated in (10) somewhat resembles that in Case 79: if the divorce occurs because of the wife's fault (culpa), the husband is allowed to retain a sixth of the dowry for each child; but this Case sets an upper limit of one-half the dowry (so also Paul, in Boethius's commentary Ad Ciceronis Topica 19). These sources do not refer to the husbands fault, which was evidently irrelevant in this context, except perhaps if both parties were held to be at fault. The reason for the rule is hard to make out, although it seems unconnected to the welfare of the children (who would normally remain under the husband's power in any case; see Case 49); a parallel rule is used for a dowry coming from the wife's pater familias (see Case 81). Perhaps the rationale was that the wife, in seeking return of her dowry, had “dirty hands” if she was responsible for the marriage ending. Can you see other possible explanations for shifting the costs of child rearing onto the ex-wife? In general, to what extent are the rules on dowry retentions likely to limit the unrestricted freedom to divorce?
2. What Is Fault? Classical sources are unclear on this point, although the spouse who initiates the divorce is not necessarily the one at fault (see, on this, Cicero, Top. 19, who otherwise misstates the rule); but perhaps this spouse usually bore the burden of proof. Doubtless, neither party is at fault when a divorce is amicable (Case 80).
Some clue as to possible legitimate grounds for divorce may be had from late imperial legislation, which, under Christian influence, restricted divorce itself. According to the most complete list (Theodosius and Valentinian, C. 5.17.8; A.D. 449), one spouse could justify divorce if the other was convicted of a major crime (treason, kidnapping, etc.) or had betrayed the marriage in a specified way (adultery and attempted murder for both spouses; for a husband, wife beating or openly consorting with prostitutes; for a wife, licentious behavior). This list may at least suggest the flavor of classical law. Remarkable is the absence of alleged financial misconduct, especially by the husband with regard to the dowry. Further, desertion, mental cruelty, and mutual incompatibility, those familiar modern standbys, are also missing, unless perhaps they are implicit in other categories. On the other hand, Ulpian (D. 24.3.22.7) holds that a husband who divorces an insane wife is at fault for ending the marriage unless her insanity is “so savage and dangerous that there is no chance of recovery.”3. Retention for Immorality. At least serious immorality would surely be a justification for the other spouse to initiate divorce. However, as this Case makes clear, retention on the basis of immorality was separate and cumulative (since otherwise a childless but offending wife would escape without penalty); that is, the husband retained separate fractions on the basis of the wife's immorality and because of children if she had caused the divorce. By contrast, the wife who proves her husband's immorality receives only accelerated repayment. Where both spouses have grounds for repudiation because of each others immoral conduct, their offenses are offset (Papinian, D. 24.3.39) and no retention is allowed; and so too, if the husband instigates his wife's adultery (Scaevola, D.
24.3.47). Are these legal proceedings likely to be messy? Only the husband or his paterfamilias is entitled to a retention for immorality; his heirs are not (Paul, D. 24.3.15.1). Further, the retention was probably available only while the wife was still alive (Constantius and Constans, C.Th. 3.13.1; A.D. 349). What might explain these limitations?4. The Action on Immorality. In classical law, when a husband was sued for return of the dowry, he could assert his right to retain because of his wife's immorality. An older procedural form, called the indicium de moribus (trial on morality), allowed the husband to sue his wife directly on a charge of immorality. Justinian (C. 5.17.11.2b; A.D. 533), describing the procedure as uncommon, abolished it; for this reason it is poorly known, although it could result in a womans forfeiting part or all of her dowry.
5. Other Retentions. This Case also mentions retentions from the dowry to offset improper gifts (see Cases 61-65) and “removal of property” (see Case 45). In both instances separate lawsuits were also available, even where there was no dowry (Pomponius, D. 25.2.8 pr.). Of course, the wife could use these lawsuits against her husband as well.