CASE 34: The "Dowered" Wife
D. 48.5.12.3 (Papinianus libro singulari de Adulteriis)
Socer cum nurum adulterii accusaturum se libellis praesidi datis testatus fuisset, maluit accusatione desistere et lucrum ex dote magis petere.
quaeritur, an huius- modi commentum eius admitti existimes. respondit: turpissimo exemplo is, qui nurum suam accusare instituisset, postea desistere maluit contentus lucrum ex dote retinere tamquam culpa mulieris dirempto matrimonio: quare non inique repelletur, qui commodum dotis vindictae domus suae praeponere non erubuit.(Papinian in his monograph On Adulteries)
By filing a criminal complaint with the (provincial) governor, a father-in-law gave notice that he would accuse his daughter-in-law of adultery. But he subsequently preferred to abandon the accusation and instead to seek to profit from the dowry. It is asked whether you think this sort of chicanery is permissible.
He (Papinian) responded: It sets a dreadful precedent that a man, after he had begun to accuse his daughter-in-law, preferred (instead) to profit from the dowry on the theory that the woman was at fault (culpa) for the marriage’s breakup. So he will not unfairly be repulsed (i.e., his claim to a portion of the dowry should be refused), since he did not blush to prefer benefit from the dowry over revenging his own home.
l.The Temptations of Money. This is a fascinating Case, the psychological complexity of which runs deep. The father-in-law officially accused his son's wife of adultery, but then withdrew his accusation in favor of an “amicable” divorce in which he would retain a portion of the dowry, evidently on the grounds that her misconduct had caused the marriages breakup (see Case 83).
Is Papinian suggesting that the father-in-law was in effect bribed, or just that he saw an opportunity and seized it? Is the father-in-law being treated as constructively a pimp (leno)? The recommended penalty is that he lose his claim to a dowry portion. Would the outcome probably have been different if he had not already filed notice of his intent to accuse his daughter-in-law? In any event, the more basic problem here is one that literary sources often allude to: a womans dowry could be so large as to effectively grant her immunity from ordinary social responsibilities. From this perspective, although the husbands side would normally bargain for a high dowry, too high a dowry presented them with some offsetting risks. One of these risks was that her husband could find repayment extremely difficult, thus substantially weakening his negotiating position if a whisper of divorce was in the air.