CASE 35: The Burdens of Marriage
D. 23.3.56.1-2 (Paulus libro sexto ad Plautium)
(1) Ibi dos esse debet, ubi onera matrimonii sunt.
(2) Post mortem patris statim onera matrimonii filium sequuntur, sicut liberi, sicut uxor.D. 23.3.7 pr. (Ulpianus libro trigesimo primo ad Sabinum)
Dotis fructum ad maritum pertinere debere aequitas suggerit: cum enim ipse onera matrimoniii subeat, aequum est eum etiam fructus percipere.
(Paul in the sixth book on Plautius)
(1) lang=EN-US style='font-weight:bold'>The dowry should be where the burdens of marriage (onera matrimonii) are.
(2) After a father’s death, the burdens of marriage fall to the son instantly, along with his wife and children.
(Ulpian in the thirty-first book on Sabinus)
Fairness requires that the “fruits” of the dowry (fructus dotis) should accrue to the husband. Since he bears the burdens of the marriage (onera matrimonii), it is fair that he also receive the fruits.
1. Marriage Burdens. The “burdens of marriage” (onera matrimonii) are, as it seems, the additional expenses of maintaining a marital household, particularly food, clothing, and shelter for the wife, her attendant slaves, and perhaps the couple's children as well. In the case of a married son-in-power, these expenses are in principle borne by his father, who accordingly controls his daughter-in-law's dowry up until his death; but the dowry immediately reverts to the son after the fathers death.
Ulpian, D. 10.2.20.2: “Further, (in settling an estate of a deceased paterfamilias) his son-in-power, who is named as heir, has a preferential claim to his wife's dowry, and rightly so since he assumes the burdens of marriage.” The jurists describe the link between a dowry and household expenses as a fundamental principle of law; for example, Paul, D. 23.4.28: “[T]he fruits of a dowry should relieve the burdens of marriage.” Why is this such a problem for the Romans? (For one answer, see Case 60.)2. Fruits of the Dowry. “Fruits” (fructus) is a technical term referring to the direct or indirect income that property produces. In general, fruits arise from capital through cultivation (e.g., crops, wool, milk), but the jurists extend the term to include minerals excavated from mines, the value of work done by slaves, and even the proceeds from a lease of property. It is these fruits, usually converted into cash, that are supposed to compensate the husband for his sustaining the burdens of marriage, although no exact accounting is ever required. On the general problem of linking dowry income to the actual costs of maintenance, see below, Part C. 4 and C.5.