Classical Roman law gave both women and men the right to repudiate their spouse unilater­ally [for exceptions to this, see Parts I.D and I.E.1].

A divorced woman could bring an action to get back her dowry in full; part of the dowry might be retained by the husband if the divorce were due to the wife's fault (or at her or her father's instigation) or if there were chil­dren from the marriage [see Part I.C].

Extant laws against unilateral divorce begin with Constantine, and have often been attributed to Christian influence — understandably, since Christian condemnations of divorce go back to the Gospels and were frequently reiterated. But the harsh provisions of Constantine's law — which is much harder on wives who wish to divorce than on husbands — are not in keeping with the generally egalitarian attitude taken by early Christian church leaders, though popular Christian attitudes may have differed [Evans Grubbs 1995, 242—53]. Recent scholarship on late Roman divorce law is more skeptical about the extent of Christian influence on imperial legislation [Arjava 1988; Bagnall 1987; Evans Grubbs 1995].

Constantine's law dates from late in his reign and is addressed to his praetorian prefect, Ablabius, a known Christian who was said to have risen from humble origins in the Greek east. The law itself contains a number of words and expressions not usually found in Roman law (classical or late antique), suggesting that the person who drafted the law (possibly Ablabius himself) did not have legal training.²⁹

Cod.

Emperor Constantine Augustus to Ablabius, praetorian prefect:

It is pleasing that a woman not be permitted to send a notice of divorce to her husband because of her own depraved desires, for some carefully contrived cause, such as his being a drunkard or gambler or womanizer.³⁰ However, neither should husbands be permitted to divorce their own wives for just any reason whatsoever. But in the sending of a notice of divorce by a woman these crimes only are to be looked into: if she has proven that her husband is a murderer or a preparer of poisons or a disturber of tombs, so that only then, after being praised,³¹ she shall receive back her entire dowry. For if she has sent a notice of divorce to her husband for any reason other than these three crimes, she should leave it (the dowry), down to a hairpin,³² in her husband's home, and in return for such great confidence in herself, should be deported to an island.

Also in the case of men, if they send a notice of divorce, it is fitting that these three crimes be inquired into: if they wanted to repudiate an adulteress or a preparer of poisons or a go-between.³³ For if he has ejected a woman who is free of these crimes, he ought to restore the entire dowry and not marry another woman. But if he does, the former wife will be given the opportunity to invade his home and to transfer to herself all the dowry of the second wife, in return for the injury brought against her.

Given... in the consulship of Bassus and Ablabius.³⁴

The penalties for a woman who divorces her husband for any reason other than those allowed by the law are even harsher than the penalties for adultery under Augustus’ adultery law of 18 B.C.E.

Note that though divorces made against the law are penalized, they are not invalidated: the husband who unjustly repudiates his wife can still remarry (so his divorce was valid), but his ex-wife can take revenge by seizing the new wife’s dowry — which would only indirectly punish her ex-husband, but which would have more serious consequences for the second wife!

After Constantine’s legislation there are no extant laws on divorce in the Theodosian Code for almost another century,³⁶ but this is probably due to the fragmentary state of preservation of the Code. References in fourth and early fifth-century Christian writers imply that

Constantine's law of 331 was not being enforced and had evidently been repealed [Arjava 1988, 7—13]· It appears that the emperor Julian (reigned 360—363), Constantine's nephew who apostasized from Christianity and embraced paganism, abolished his uncle's penalties for women who repudiated their husbands.³⁷ His law is not extant, but a passage in the Christian writer known as “Ambrosiaster” refers to it:³⁸

Ambrosiaster, Liber Quaeet.

... Before the edict of Julian, women were unable to dismiss (that is, divorce) their husbands. But once they had received the power, they began to do what previously they could not do: for they began wantonly to dismiss their own husbands, on a daily basis..

Ambrosiaster reveals the same misogynism as Constantine's law, but there may be some truth to his assertion: women trapped in unhappy marriages may have taken advantage of the return to freedom of divorce under Julian, as has happened in other periods when divorce restrictions have been lifted [Evans Grubbs 1995, 233]· Disapproval of women who divorce can be found in many works of earlier Latin literature, and is probably indicative of Roman popular attitudes, Christian and pagan [Arjava 1988].

The next extant law on divorce is from the fifth-century west, an enactment of the emperor Honorius and his colleague and brother-in-law Constantius. This law reinstitutes the Constantinian penalties for totally unjustified divorce by a wife or a husband, but reduces the penalty for divorce when the other spouse has “middling” faults to loss of dowry and pre­nuptial gift, and denial (for a woman) or delay (for a man) of the right to remarry.

Cod. Theod. 3.16.2, 10 March, 421

Emperors Honorius, Theodosius, and Constantius Augusti to Palladius, praetorian prefect:

A woman who has separated (from her husband) by presenting a repudium given by her, if she has proved no causes for her own divorce, having lost the gifts which she had received as a fiancee, shall also be deprived of her dowry and given over to the penalty of deportation. We deny to her not only the bond of a second husband, but also the right of return from exile.³⁹ But if a woman, struggling against marriage, has proved clearly vices and middling faults (on the part of her husband), she will lose her dowry and is to refund the (pre-nuptial) gift to her husband, certainly never to be joined in marriage with anyone again.

(1) Certainly, if the husband has first brought about the divorce and has brought a serious criminal charge against the woman, he shall accuse her and pursue her by law and having obtained his vengeance he shall possess her dowry and shall receive back his generosity (i.e., the pre-nuptial gift) and shall obtain the free choice of marrying another woman soon. But if it is a fault of character, not of crimes, he shall receive back his gift, relinquish the dowry, (and) marry another wife after two years. But if he has preferred to split up the marriage solely because of disagreement and the repudiated woman is weighed down by no vices or sins, the husband shall lose both the pre-nuptial gift and the dowry, and in perpetual celibacy he shall endure the penalty for insolent divorce from grievous solitude, and to the woman the power of marriage has been conceded after the end of a year.⁴¹ (2) However, we order that the provisions of the ancient law concerning withholdings from the dowry on account of children be preserved.⁴²

Given at Ravenna on the sixth day before the Ides of March in the consul­ship of Eustathius and Agricola.⁴³

The western law of 421 was not promulgated in the eastern Empire, which by this time had its own separate consistory.⁴⁴ But in 438, when the Theodosian Code was published and subsequently accepted in both halves of the Empire, Cod.

Theodosius’ law upholds classical doctrine that the consent of both parties is the only requirement for valid marriage [cf. Chapter 2, Part I.A.2; Cod. Theod. 3.7.3 in Chapter 2, Part II.C]. But it makes dissolving a marriage more difficult by requiring the issuing of a repudium, a (presumably written) notice of divorce [Evans Grubbs 1995, 235; Wolff 1950, 294—5]. In making divorce somewhat less easy to obtain, the law invokes favor liberorum, the benefit of the law that should be given to children. This is the first extant mention of chil­dren in late Roman divorce law, though it is possible that the original, unabridged versions of the Theodosian Code laws did refer to children.

Novel 12 of Theodosius II, 10 July, 439

Emperors Theodosius (II) and Valentinian (III) Augusti to Florentius, prae­torian prefect:

We order that legal marriages are able to be contracted by consent, (but) once contracted are not able to be dissolved except if a repudium has been sent. For indeed the favor that should be shown to children (favor liberorum) demands that the dissolution of marriage ought to be rather difficult.

(1) But in sending a repudium and inquiring into the fault for the divorce, it is harsh to go beyond the guidance of the ancient laws. Therefore, having repealed the constitutions which order that now the husband, now the woman be repressed by the most severe penalties after a marriage has been dissolved, by this constitution we propose to revoke the blame for a repudium and the punishments for faults (and to return) to the ancient laws and the responses of jurisprudents, Florentius, dearest and most beloved parent.⁴⁵ And so your splendid and magnificent authority shall order that these things, which have been most providently decided, be made known by means of posted edicts.

Given at Constantinople on the sixth day before the Ides of July in the seventeenth consulship of Theodosius Augustus and the consulship of Festus, v.c.⁴⁶

In 448, Theodosius II sent to the western emperor, Valentinian III (son of Constantius and Galla Placidia), the laws that had been enacted in the eastern Empire since the publication of the Theodosian Code ten years earlier. It appears that Valentinian was not pleased with Theodosius’ divorce law of 439, for in 452 he enacted his own rule, reinstating the earlier legislation of Honorius and Constantius [Cod. Theod. 3.16.2]. The following excerpt was part of a much longer law [Novel 35, see Chapter 2, Part II.C for another excerpt], on a number of matters, including pre-nuptial gifts, dowry, and the property passed on to children from their mother (bona materna).

Novel 35.11 of Valentinian III, 15 April, 452

(11) Regarding the bond of reverence for marriages themselves, however, so that (marriages) not be abandoned rashly and indiscriminately, the new law, which had allowed marriages to be dissolved solely on the basis of an opposing desire, has been rejected. Those things which were decreed by our divine father Constantius will be preserved unimpaired.

Ten years after his law returning to the classical rules of divorce [Novel 12, above], Theodosius II changed his mind and reinstated some restrictions on divorce. He issued a second, very long divorce law, detailing the circumstances under which a wife or husband could obtain a justified (and therefore unpenalized) divorce. In cases where a wife or husband can show serious criminal activity or abuse on the part of the other spouse, then he or she can divorce without penalty and remarry (in the woman’s case, after an interval of a year). Unjustified divorce will result in the loss of the dowry and the pre-nuptial gift. The lists of justified causes reveal not only some of the less attractive aspects of marital relationships in late antiquity (and at other time periods), but also the imperial ideology regarding gender relations: freeborn women ought not to be whipped, husbands should not shame their wives by having extra-marital relationships in their own homes, and well-behaved wives ought not to attend popular entertainments without their husband’s permission or spend the night away from home.

Though this law is found in the Code ofJustinian in the names of both emperors, it was never received in the west and is a law of Theodosius II only.

Cod. Just. 5.17.8, 9 January, 449

Emperors Theodosius (II) and Valentinian (III) Augusti to Hormisdas, prae­torian prefect:

[The beginning is the same as first two sentences of Novel 12.]

(1) Moreover, by this most salubrious law we define more clearly the causes for a repudium. For just as, by a just limit we prohibit marriages to be dissolved without just cause, so do we wish that a man or woman oppressed by adverse necessity be freed by aid that, though unfortunate, is nevertheless necessary.

(2) If, therefore, (a woman) has discovered that her husband is an adul­terer or a murderer or a poisoner or certainly is plotting something against our reign or has been condemned for the crime of forgery, or is an overturner of tombs, or is taking something away from sacred temples, or is a bandit or a harborer of bandits or a cattle-stealer or a kidnapper or has intercourse with unchaste women in his own home in contempt of her while she herself is looking on — a thing which particularly exasperates chaste women — or if she has proven that he is plotting against her own life with poison or the sword or some other similar way, or is afflicting her with whippings — which are inappropriate for freeborn women — then we permit her to make use of necessary freedom by the aid of a repudium and to prove the causes of her divorce by law.

(3) The husband, also, shall be closed in by an equal limit, nor will he be permitted to repudiate his own spouse without clearly defined causes, nor shall he drive her out in any way unless he has discovered that she is an adul­terer, or a poisoner or murderer or kidnapper or overturner of tombs or taking something from the sacred temples or a protectress of bandits or is eager for entertainments with unrelated men without his knowledge or against his will, or, of course, is spending the night away from home if he is unwilling without just and probable cause, or unless she is enjoying herself in circus or theatrical games or spectacles in the arena in the very places where they are customarily celebrated when he forbids her to, or unless she is plotting against him with poison or the sword or some other similar way, or is knowledgeable about those plotting something against our reign, or is involved in the crime of forgery, or he has proven that she is applying auda­cious hands to him. For then we permit to him the necessary ability to divorce and to prove the causes of divorce by law.

(4) If the man or woman have not observed these (rules), they shall be struck with the avenging penalty of this most providential law. For if a woman has attempted to send a repudium in contempt of the law, she shall lose her own dowry and the pre-nuptial gift nor shall she have the power of marrying again within a five-year period. For it is right that she lack the right of marriage in the meantime, in that she has shown herself unworthy. (4a) But if she has married before this, she herself will indeed be infamous, but we do not want it to be called marriage. Moreover, we even grant the liberty of proving this to the one who wants. (4b) But if she has proven that the cause was maintained,⁴⁷ then we decree that she can recover her dowry and have the pre-nuptial gift with profit or claim it by law and we allow her the ability to remarry after a year, so that no one have doubts about the offspring.⁴⁸

(5)We decree by this just decision that the man also, if he has proven that the woman was attempting forbidden things, can keep for himself or claim from his wife the dowry as well as the pre-nuptial gift, and, if he wishes, can immediately remarry. But if he wanted to renounce his own wife otherwise, he shall give back the dowry and shall lose the pre-nuptial gift.

(6) Of course, if a charge of adultery or treason is brought, the male or female slaves over puberty, of the husband as well as of the wife, are to be submitted to torture for the purpose of examining the reason for the repudium, in order that the truth may either be more easily dug up or more clearly uncovered, however, (only) if other proofs are lacking⁴⁹... [the rest of this passage is omitted here]

(7) But if a repudium has been sent when there is a son or sons, a daughter or daughters extant, we decree that everything acquired from the marriage is to be preserved for the son or sons, daughter or daughters after the death of the person receiving it; that is, if the father rashly sent a repudium, the pre­nuptial gift is to be preserved by the mother, (or) if the mother (sent a repudium), the dowry itself is to be given up to the same son/s or daughter/s when the father dies. Of course the choice is to be preserved for the father or mother in designating their children as heirs (in their will), if they should wish to designate as heir one son or one daughter or all or to make a gift to one from among them..

Given on the fifth day before the Ides of January in the consulship of Protogenes and Asterius.

The laws say much about the imperial attitude toward divorce (suggesting a somewhat more restrictive view in the western Empire than the east), but they do not tell us anything about actual practice. Did the threat of legal penalties deter women in unhappy marriages from seeking a divorce? Papyri from late Roman Egypt suggest that imperial law did not make much difference to what people actually did, at least in that province [Bagnall 1987; see Part III.A below]. Unfortunately, our evidence for “real life,” as opposed to legal prescrip­tions, is very scanty for anywhere outside Egypt. Christian leaders generally opposed divorce except in the case of a wife's adultery, but their writings suggest that many in their congrega­tions did not agree [see Evans Grubbs 1995, 242- 53].

We do hear of one case of divorce in fourth-century Rome, from the Christian writer Jerome in a letter after the death of his good friend Fabiola.⁵⁰ Fabiola was descended from an ancient Roman senatorial family, and was apparently a baptized Christian at the time her divorce occurred. Jerome's letter was written in 399, but the divorce had taken place many years before, when Fabiola had been quite young. It may even have pre-dated the relaxation of Constantine's law by the emperor Julian (see the passage from Ambrosiaster above), or perhaps Fabiola was one of the women criticized by Ambrosiaster who rushed to repudiate her husband after Julian's edict.

Jerome felt the need to excuse Fabiola's actions, which were contrary to Christian teach­ings, and aroused considerable criticism from Christians. According to him, she had good reason to end her marriage, for it was well-known that her husband was sexually dissolute. (However, his behavior would not have met the criteria for unilateral divorce as set forth in Constantine's law of 331, or for divorce and remarriage as required by Honorius and Constantius' law of 421.) But to Christians, the fact that Fabiola had remarried while her first husband was still alive, apparently quite soon after her divorce, was even more shocking than her repudiation of her husband. Christian condemnation of divorce and of remarriage after divorce goes back to the New Testament, and was one of the few issues of sexual morality on which Jesus himself actually taught [see Evans Grubbs 1995, 242—53]. Moreover, it appears that by this time divorce among the Roman aristocracy (Christian or pagan) was extremely rare.⁵¹

Jerome, Epistle 11.3

And immediately, in the beginning, a certain rock, as it were, and a tempest of detractors oppose me, because she undertook a second marriage and aban­doned her first. I will not praise the woman after she was transformed unless I have absolved her after she was accused.

The laws of the emperors are one thing, the laws of Christ, another; Papinian taught one thing, our Paul another.⁵⁴ Among them (pagans) the reins of shame are relaxed for men and their lust is let loose hither and thither through brothels and slave girls; only stuprum and adultery are condemned — as if the sin were that of status, not lust. Among us, what is not permitted to women, is equally not permitted to men and the same servitude is decreed by an equal condition. Therefore she put away, as they say, a depraved man; she put away a man who was guilty of this crime and that; she put away a — I almost said that which his wife alone did not reveal when the neighbors were shouting it from the rooftops.

But if the charge is made that, having repudiated her husband, she did not remain unmarried, I will readily admit the fault, while, however, I maintain the necessity. For it is better, the apostle says, to marry than to burn.⁵⁵ She was a young woman, she was not able to preserve her widow­hood. She saw another law in her own limbs fighting against the law of her mind,⁵⁶ and she saw herself being dragged, a captive in chains, to sexual intercourse. She thought it better to confess her own weakness and to submit to the shade of a wretched marriage rather than practice prostitution under the renown of being a one-man woman. The same apostle wants young widows to marry, to bear children, to give no occasion for the purpose of reproach. And immediately he explains why he wants this: for already certain women have gone behind Satan.⁵⁷ Therefore also Fabia (sic), because she had persuaded herself and thought that her husband had been lawfully divorced by her — nor did she know the force of the gospel, in which every pretext for remarrying is cut off for women while their husbands are still alive — while she avoided many wounds of the devil, she heedlessly received one wound.

It is odd to find Jerome, who is known as a staunch proponent of Christian virginity and critic of female sexuality, excusing a woman's remarrying because she had uncontrollable sexual needs. Elsewhere he denied the possibility of remarriage after divorce for any reason at all.⁵⁸ No doubt the fact that Fabiola did finally perform a spectacular public penance some years later (after her second husband died) — and the fact that she was a good friend of his — made up for her earlier behavior in Jerome's eyes. Fabiola ended her days as a devout Christian and generous benefactor of the church.

Jerome contrasted the norms of Roman law and society, which applied a double standard and always judged women's sexual misbehavior more harshly than men's, with Christian ideology, which held men and women to the same sexual standard. The Christian writer put his finger on the difference between the Roman legal definition of adultery and the Christian one. The law on adultery and stuprum was based on the marital and legal status of the parties involved: adultery was extramarital sex by or with a married woman; stuprum (which included adultery) was sex by or with a woman of respectable status (unmarried, married, widowed or divorced). A married man's sexual activities with slaves, prostitutes, or other women of low status were not, in legal terms, adultery, and he could not be prosecuted.⁵⁹ Moreover, under Augustus' law, adultery (in the Roman legal sense) was subject to criminal penalties, and in late antiquity, such penalties could even include death [Evans Grubbs 1995, 216—21]. All of the late Roman laws allow a man to divorce his wife for adultery, but only in the law of Theodosius II [Cod. Just. 5.17.8] is a husband's adultery considered appropriate grounds for unilateral divorce by a wife. And even there, the classical definition of “adultery” still holds — a husband's affairs with slaves or prostitutes would not present a valid reason for divorce.

On the other hand, Christian writers, particularly in the west, condemned promiscuous husbands equally with promiscuous wives, as Jerome does. But many Christian pastoral leaders, despite recognizing a single sexual standard in theory, still treated the sexual sins of women more harshly than those of men in practice.⁶⁰ Theodosius II's law of 449, with its careful paralleling of the causes for which wives and husbands may seek a divorce, comes close to the (theoretical) “Christian” position; even there, however, the law does not really demand an “equal condition” for men and women, but upholds a higher standard of behavior for women. More of the valid causes for divorce of a wife by a husband concern moral miscon­duct, whereas the valid causes for divorcing a husband center on his criminal behavior and violence toward his wife and others [Beaucamp 1990, 174].

Valentinian's law of 452 is the last extant divorce law before 476, but the sixth-century Byzantine Empire saw extensive legislation enacted, particularly by Justinian.⁶¹ It continued to be an issue on which Christian church, official law, and popular practice diverged, often sharply.

III