A Definition and causes of divorce
D.24.2.1 (Paulus): Marriage is broken by divorce, death, captivity or another kind of slavery affecting one of the two partners.
D.50.16.101.1 (Modestinus): It is said that there is “divorce” {divortium} between man and wife, but “repudium” seems to be sent to a fiancee.
This refers not absurdly also to the person of a wife.D.50.16.191 (Paulus): Between “divorce” and “repudium” there is this difference, that even a future marriage (i.e. a betrothal) can be repudiated. However, a fiancee is not properly said to have divorced, because it has been called “divorce” from the fact that those who separate go off into diverging directions.
D.24.2.2 (Gaius): Moreover, it has been called “divorce” either from the diverging of minds or because those who are separating go off into diverging directions. 1: However, in repudiations, that is, in renunciation, these words have been established: “Have your own things for yourself;” likewise these words: “Attend to your own affairs.” 2: In splitting up betrothals also, it has been decided that a renunciation ought to occur, in which event these words have been established: “I do not employ a marriage match with you.” 3: But it makes no difference at all if the renunciation is made in the presence of the person (being repudiated) or in his (or her) absence through someone who is in his power or (through someone) in whose power he or she is.
D.24.2.3 (Paulus): A divorce is not real unless it occurs with the intention of forming a permanent separation. And so whatever is either done or said in the heat of anger, is not settled unless it has become apparent by perseverance that it was a definite decision.
Therefore, if, after a repudium was sent in anger, a wife returned in a brief time, she does not appear to have divorced.2Pre-nuptial agreements not to divorce had no legal validity:
Cod. Just. 8.38.2, 3 February, 223
Emperor Alexander Augustus to Menophilus:
From ancient times it has been determined that marriages are unrestricted. Therefore it is agreed that pacts not to permit divorce are not valid, and stipulations by which penalties were imposed on the person who had effected a divorce are considered invalid. Posted on the third day before the Nones of February in the second consulship of Maximus and the consulship of Aelianus.
Whereas gifts between spouses were not valid, it was possible for spouses who divorced amicably to give each other gifts. The jurists mention several reasons why couples might agree to divorce on good terms:
D.24.1.60.1 (Hermogenian): Gifts made “on account of divorce” have been allowed between husband and wife. For often it happens, that on account of the priesthood or even sterility,
D.24.1.61 (Gaius): or old age or ill health or military service, a marriage could not be conveniently maintained;
D.24.1.62 pr. (Hermogenian): And therefore the marriage is dissolved “with a good grace” (bona gratia).
The husband who commemorated his wife of many years in the long inscription known as the Laudatio Turiae recalled that she had suggested a divorce because of their inability to have children.
He hotly rejected her offer, declaring that he would rather live childless with her than have children by any other woman. After all, she had saved his life during the civil wars and had kept faith with him throughout the political and social upheavals of the second triumvirate. We may wonder why a husband would talk about such an intimate matter in a public funeral oration for his wife, and record it on stone for posterity. He may have felt that it was necessary to provide a public defense of his non-compliance with the recently enacted legislation of Augustus on marriage and child-bearing [Chapter 2, Part I.B}.3' The passage is indeed a remarkable testament to the Roman ideal of the harmonious, lifelong marriage; at another point in his speech the husband declares: “Rare are such long-lasting marriages, ended by death, not broken by divorce; for it happened that ours lasted for forty years without offense” [I.27—8}. This husband's clear privileging of the marriage relationship over having children, even in the face of social and legal pressure to produce heirs, helps to explain why Augustus' marriage legislation ultimately failed.Laudatio Turiae II.31—47, late 1st c. B.C.E.
31: Distrusting your fertility and grieving about my childlessness, (afraid) that by being married to you I was giving up hope of having children and would be unhappy for that reason, you spoke openly about divorce. (You said) that you would hand over our empty home to another woman’s fertility, with no other intention except that, with our well-known marital harmony, you yourself would seek out and procure for me a worthy and suitable marriage match, and you would promise to consider my future children as held in common with you and as if they were yours. Nor would you make a separation of our property, which up to then had been held by us in common, but it would continue to be under my authority and, if I wished, under your stewardship.
You would have nothing divided, nothing separated, and you would thereafter exhibit to me the offices and sense of duty (pietas) of a sister and a mother-in-law.40: I must confess that I became so inflamed, I almost went out of my mind; I was so horrified at your efforts that I scarcely regained control. For the possibility of a divorce between us to be considered before the law (lex) had been spoken by fate — that you were able to conceive in your mind some situation whereby you would cease to be my wife while I was still alive, when you had remained most faithful to me when I was an exile almost from life! 44: What desire or need of having children would be so important to me, that I would for that reason cast off my faithfulness and exchange sure things for unsure? — But why should I say more? [You remained my wife} with me; for I was not able to yield to you without my own dishonor and our mutual unhappiness.