E Divorce and patria potestas
The Roman concept of paternal power also played a role in the circumstances and consequences of divorce.
1 A father’s right to break, up his child’s marriage
The legal sources make it clear that for a union to be considered iustum matrimonium, the consent of the paterfamilias of both bride and groom was essential [see Chapter 2, Part I.C].
Was it also necessary that couples who wished to divorce have the permission of their respective fathers? There is no direct statement of this in extant classical Roman law, but on the analogy of consent to marriage, it is probable that a paterfamilias had to at least give tacit consent to the divorce of a child in his paternal power — that is, he had not to object.18 For most men, the question of their father's consent would not arise, since their father was likely to have died even before they married, and even if he were still alive at the time of marriage, he probably would not have lived many years after [cf. Saller 1994, 121]. Women, who married on average ten years younger than men, would be more likely to have a living paterfamilias at the time of marriage. However, women whose father had arranged their marriage when they were in their teens might well find themselves legally independent before they turned thirty. They could use their independence to free themselves from an unhappy marriage. (Women under tutela mulierum would not need their tutor's permission to divorce, but only if they wished to constitute a dowry for a second marriage after divorce; see Chapter 1, Part III.A.)A young woman with a living paterfamilias could probably not divorce if her father objected, but there is nothing in the legal sources about fathers actually trying to prevent their daughter from divorcing [Treggiari 1991a, 445—6].
If a divorced woman were returning to her natal home, she would no doubt need her father's permission. And a father would certainly have an interest in seeing that his daughter's husband returned her dowry after divorce:Cod. Just. 5.4.7, 29 October, 240
Emperor Gordian to Aper:
If, as you assert, the marriage was broken up after a complaint concerning her husband reported to you by your daughter, nor did she return to him with your consent, the union is not at all legal, since it is no longer according to the will of the father in whose power she is. And therefore, as long as your daughter does not regret (her decision to divorce), you will not be prevented from asking for her dowry back. Posted on the fourth day before the Kalends of November in the consulship of Sabinus and Venustus
On the other hand, until the mid-second century, fathers did have the right to force their children under patria potestas to divorce their spouses. The sources attribute the mitigation of this paternal prerogative to either Antoninus Pius (138—161) or Marcus Aurelius (161—180). There may have been more than one ruling by different emperors responding to individual petitions. Even this restraint on patria potestas was tempered by the proviso that if he had good reason the father could still break up his child's marriage.
Sent. Pauli V.vi.15: The deified (Antoninus) Pius forbade that a harmonious marriage be broken up by a father, and likewise that a freedman’s (marriage) be broken up by a patron, or (the marriage of) a son or daughter be broken up by relatives (parentes), unless by chance there is an investigation, when it ought to be more useful to delay.
D.43.30.1.5 (Ulpian): If someone wants to take away his daughter, who has been married to me, or desires that she be shown to him, must an exception be given against the injunction,19 if by chance the father wants to dissolve a harmonious marriage, perhaps one even supported by children? And certainly we follow the law, that really harmonious marriages are not to be disturbed by the legal right of paternal power.
However, (the law) should be employed in such a way that the father be persuaded not to exercise his paternal power in a harsh way.Frag. Vat. 116: A father sent a repudium to his son-in-law against his daughter’s wish; I ask whether he can get back the dowry (which was) provided from his own resources. Paulus replied that indeed the marriage seems to have been justly dissolved by the very act (of sending the repudium), but that it is not permitted for a father to take his daughter away from her husband against her will, nor for him to be able to get back the dowry unless his daughter consents.
This rather puzzling ruling recalls the paradoxical attitude toward consent to marriage: all parties ought to consent, but lack of active opposition can be taken to imply consent. Perhaps the divorce was valid after the repudium was sent, but the father could not forcibly separate his daughter from her husband, nor could he get her dowry back [Buckland 1963, 117; Treggiari 1991a, 460—1]. The outcome would depend on the daughter’s personal decision either to return to her husband or agree to the divorce, as is clear from the following imperial replies to petitions, dated more than a century after the Antonine ruling:
Cod. Just. 3.28.18, 14 February, 286
Emperors Diocletian and Maximian to Faustina:
Since you say that you did not violate the observance of pietas, but that you were unwilling to break up the marital union which you had been allotted, and for that reason your father, offended and angry, slipped into the disgrace of disinheritance, you will not be prohibited from bringing a complaint of “undutiful will.”20 Posted at Nicomedia21 on the sixteenth day before the Kalends of March in the second consulship of Maximus and the consulship of Aquilinus.
Cod. Just. 5.17.5, 27 August, 294
Emperors Diocletian and Maximian and the Caesars to Scyrion:
Our father, that most pious Emperor, the deified Marcus (Aurelius), decided that when a daughter under paternal power was a wife living in harmony with her husband, her father’s objecting — if he gave his consent to the union in the beginning — was not to be considered valid, unless the father did this when some great and just reason came up. (1) On the other hand, no constitution of law declares that she should return to her husband if she is unwilling. (2) But a father does not have any choice over the divorce of a daughter he has emancipated from paternal power. Given at Nicomedia on the fifth day before the Kalends of September in the consulship of the Caesars.
Cod. Just. 5.4.11, 284-292
Emperors Diocletian and Maximian to Alexander:
If your wife is being held by her relatives against her will, our friend the governor of your province, after you have approached him for help, and following the woman’s own wish, when she has been produced in public, will relieve your desire.
Sometimes even mothers tried to force their children’s divorce, though such a power had never been granted to them:
Cod. Just. 3.28.20, 5 January, 294
Emperors Diocletian and Maximian and the Caesars to Sabinianus:
A daughter who has been left an orphan by her father, who is living in concord with the husband she married when her mother was willing, does not offer just cause for offense after the same mother's change of mind (about the marriage), nor is she lawfully compelled to be married or unmarried at the momentary whims of her mother.
Given at Sirmium on the Nones of January in the consulship of the Caesars.Cod. Just. 5.17.4, 29 December, 294
Emperors Diocletian and Maximian and the Caesars to Piso:
A mother does not have the power to bring about her daughter's divorce. Given at Sirmium on the fourth day before the Kalends of January in the consulship of the Caesars.
The conflicts we find in the legal sources center around a father’s right to break up his daughter’s marriage; nothing is said about the marriages of sons under paternal power. We do hear of one famous case in which a stepfather forced his wife’s son to divorce, but since it involved the imperial family, the circumstances were unusual.22 Augustus ordered Tiberius, his adopted son (son of Augustus’ wife Livia by her first marriage) to divorce his wife Vipsania (Agrippina) in order to marry Augustus’ daughter Julia (who had previously been married to Marcus Agrippa, Vipsania’s father, and was thus the widow of Tiberius’ father-in-law):
Suetonius, Tiberius 7
(Tiberius) married Agrippina, born from Marcus Agrippa, the granddaughter of Caecilius Atticus, a Roman eques,23 to whom Cicero's letters were sent. But after he had begotten a son, Drusus, from her, he was forced to dismiss her, though she was well-suited to him and was again pregnant, and immediately to marry Julia, Augustus' daughter — not without great anguish of spirit, since he was possessed by intimacy and affection for Agrippina, and also disapproved of Julia's character, as he had perceived that she desired him even during her previous marriage (to Agrippa), which indeed was quite generally believed. But he grieved that he had driven Agrippina off even after the divorce, and when he saw her face to face just once, he followed her with eager and moist eyes, so much so that precautions were taken that she never again come into his sight.
The case of Tiberius shows that adult children might regret very much being made to divorce (and see Cod.
Just. 5.4.11 to Alexander, who claimed his wife was forced to divorce against her will). In Roman Egypt, fathers also exercised their right to bring about their daughter’s divorce under local Greco-Egyptian (not Roman) law. Some daughters resisted this, as we know from a long papyrus of the late second century detailing the complaint of one daughter, Dionysia, against her father Chaeremon, which quotes earlier court cases involving similar situations [P.Oxy. II.237; see Rowlandson 1998, 183—8].2 Children after divorce
In our society, conflicts over the custody of children after divorce are frequent. In Roman law, the situation seems simpler: children born in legitimate marriage came under their father’s power, and if the marriage broke up, they remained under his control. A woman who divorced her husband ran the risk of never seeing her children again, and this probably served as a greater deterrent for women contemplating divorce than any legal restrictions would have. It was recognized, however, that sometimes children were better off living with their mother, if the father were a disreputable character:
D.43.30.3.5 (Ulpian): Even if a father should prove completely that a son is in his power, however, after a hearing has been held, the mother will have preference in keeping him, and that is contained in certain oral decisions of the deified (Antoninus) Pius. For a mother has obtained (custody) on account of the father's wickedness, so that the son remained with her (though) without diminution of paternal power.
Antoninus Pius’ decision was confirmed in rescripts of Marcus Aurelius and Septimius Severus [D.43.30.1.3]. Note that though a mother might have physical custody of the child, the father did not lose patria potestas.
Parents who divorced on amicable terms might make arrangements to share custody, or for the mother to keep very young children with her, but such arrangements were outside the usual scope of the law [Daube 1966]. Local and provincial officials, and even emperors, might be asked to intervene in custody disputes. The emperors Diocletian and Maximian replied to a woman who was probably involved in such a case:
Cod. Just. 5.24.1, 14 June, 294
Emperors Diocletian and Maximian and the Caesars to Caelestina:
There is no legal provision, in any constitution of ours or of our divine parents,24 that a division of children be made between the parents on the basis of sex. However, the appropriate judge will decide whether the children ought to stay and be cared for at the father's home or at the mother's after a marriage has been broken up. Subscribed on the sixteenth day before the Kalends of July at Beroea in the consulship of the Caesars.
Diocletian replied to this petition when he was at Beroea (modern Aleppo) in Syria. It is possible that Caelestina, who was probably from the Middle East, was referring to a local custom of dividing custody of children by sex, a practice unfamiliar to the imperial chancellery [Yaron 1964, 296-8].
Fathers had financial responsibility for the children born to them in legitimate marriage, even if the children lived with their mother after divorce. Thus if there were children, a man could retain part of his ex-wife’s dowry, if the divorce had been due to her fault or at her instigation. But if the children were living with their mother, a divorced father might be reluctant to contribute financially, as so often is the case today. A woman Tatiana went so far as to petition the emperor to force her ex-husband to pay child support:
Cod. Just. 5.25.3, 16 February, 162
Emperors Marcus Aurelius and Lucius Verus to Tatiana:
If you have proven to the appropriate judge that the child whom you say you bore to Claudius is his son, he will order him (Claudius) to provide support to him (the child) according to his means. The same man will decide whether (the child) ought to be brought up in his (Claudius') household. Posted at Rome on the fourteenth day before the Kalends of March in the consulship of Rusticus and Aquilinus.
Here it appears that Claudius was denying paternity. Probably Tatiana and Claudius had been married, and Tatiana’s child had been born during the marriage or shortly after the divorce. The situation of children born within a few months of divorce was so problematic that in the early second century,25 the Senate passed a decree, the senatusconsultum Plancianum, to regulate cases where an ex-wife claimed to be pregnant by her former husband:
D.25.3.1 pr. (Ulpian): The decree of the Senate which was made about the recognizing of children, comprises two cases: one concerning men who recognize (sc. paternity), the other concerning women who substitute false offspring. 1: Therefore it permits a woman or the parent in whose power she is, or the person to whom a mandate has been given by them, if she should believe herself pregnant, to make an official announcement within the thirty days reckoned after the divorce to the (ex-)husband himself or to the parent in whose power he is, or to make an official announcement to his home, if she does not have access to any of them26... 3:... It is now the husband's (right) either to send observers or to make an official announcement to her, that she is not pregnant by him. Moreover, it is permitted either for the husband himself to do this or for someone else acting in his name. 4: However, the husband shall have this punishment, that, unless he has either sent observers or, on the other hand, has announced that she is not pregnant by him, he shall be forced to recognize the offspring. And, if he has not recognized (the offspring), he will be forced to in court (extra ordinem).
The “observers” (custodes} were to keep an eye on the woman to be sure she was indeed pregnant and gave birth to a live child.
D.25.3.1.6 (Ulpian): But if the husband voluntarily offers observers and she does not allow them, or if the woman has not made an announcement, or if she has in fact made an announcement, but has not allowed observers (chosen) by the decision of a judge, the husband or his parent is free not to recognize the offspring. 7: If a woman has not announced that she is pregnant within the thirty-day period, if she afterwards announces it, she ought to be heard, after the case has been investigated. 8: But indeed, even if she has omitted an announcement altogether, (the jurist) Julian says that this does not at all harm the offspring which is born.
The procedure described in the Senate’s decree was very similar to one called for by the Praetor’s Edict for a widow who claimed to be pregnant by her deceased husband. The aim was to ensure that a child who really was the offspring of a man in legitimate marriage be recognized as his heir even if the marriage had ended. Widows in such a situation had not only to notify their former in-laws that they were pregnant, but also had the actual birth
monitored under high-security conditions [D.25.4.1.10—15; Chapter 5, Part III.A]. Though this was not usually required of divorced women, in one case it was:
D.25.4.1 pr. (Ulpian): In the times of the deified brothers (Marcus Aurelius and Lucius Verus), when it had happened that a husband said that his wife was pregnant, but the wife denied it, they (the emperors) sent a rescript to the urban praetor, Valerius Priscianus, in these words: “Rutilius Severus appears to desire a new thing, to place an observer over his wife, who had divorced him and claims that she is not pregnant. And so no one will wonder, if we also suggest a new plan and remedy. Therefore if he persists in this demand, it is most suitable that the home of a very respectable woman be chosen, into which Domitia shall go, and there three midwives of proven skill and trustworthiness, who have been chosen by you, shall inspect her. And if indeed either all or two should announce that she appears pregnant, then the woman will be persuaded that she therefore allow an observer as if she herself had desired this. But if she has not given birth, her husband should know that it is a matter of ill-will (invidia) and of his reputation, and that he shall not undeservedly appear to have seized on this as some sort of insult to the woman. If, moreover, either all or most (of the midwives) have announced that she is not pregnant, there will be no reason for observing her.”
Domitia had divorced Rutilius Severus, who evidently suspected her of concealing the fact that she was pregnant by him. This is thus the opposite situation from that envisaged by the s.c. Plancianum, which concerned cases where a divorced woman claimed to be pregnant and her ex-husband might want to deny paternity. In both situations, as well as the case of a widow claiming to be pregnant by her deceased husband, Roman officials and lawyers thought the appropriate solution was a physical examination and close observation of the allegedly pregnant woman! When the existence of a man's heir was in question, his former wife did not have a right to privacy.
That ex-husbands had reason to be suspicious is suggested by other cases known from the Digest, where divorced women did conceal their pregnancies:
D.22.3.29.1 (Scaevola): A pregnant woman who had been divorced (repudiata), having given birth to a son, declared him as illegitimate in the records in her (ex-) husband’s absence. It was asked whether he were in his father’s power and whether, after the mother had died without a will, he could accept an inheritance from his mother at his (the father’s) command, and whether the declaration made by his mother when angry should not be prejudicial (to the son). (Scaevola) replied, that there would still be a place for the truth.
D.40.4.29 (Scaevola): (A man) had repudiated his pregnant wife and married another. The former wife, after giving birth, exposed27 her son. He was rescued and brought up by another, and was called by his father’s name. Throughout his father’s life it was unknown to the father as much as to the mother, that he (the child) was among the living. When the father died and his will was read out, in which the son was neither disinherited nor instituted heir, the son, recognized by his mother and his paternal grandmother, obtained inheritance from his father as if he were a legitimate heir succeeding upon intestacy.
Disgruntled ex-wives might even go so far as to abort their former husband's child. This happened in a case that was brought to Septimius Severus and Caracalla, evidently by the exhusband. The emperors' ruling is referred to at least twice in the Digest [cf. also D.48.8.8 (Ulpian)], though only in D.48.19.39 do we learn that the woman was divorced from her husband:
D. 47.11.4 (Marcian): The deified Severus and Antoninus wrote in a rescript that she who intentionally aborted ought to be sent into temporary exile by the governor. For it can appear shameful for her to have defrauded her husband of children with impunity.
D.48.19.39 (Tryphoninus):... But also if anyone, because she was pregnant, applied violence to her own womb after a divorce, so that she would not bear a child to her estranged husband, it has been stated in a rescript by our best of emperors that she is to be punished by temporary exile.
The woman was not punished for having procured an abortion, which was not per se against the law. Though Roman law did consider a fetus as “among human affairs” for some legal purposes [see D.1.5.7 (Paulus)], it was the prerogative of the paterfamilias of the yet unborn child to determine whether it would be reared and acknowledged (see Chapter 1, Part II.A on the father's “right of life and death”). In this case, since the child had been conceived in legitimate marriage, the father had the right to decide its fate, and the ex-wife, by having an abortion without his consent, was thought to deserve a serious penalty.28
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