Dowry
(1) Nature and Role of Dowry
Marriage did not impose any legal duty on the husband to maintain the wife (or vice versa). A husband was, however, subject to a social duty to maintain his wife.
He was seen as bearing the financial burden of marriage.[728] It was common, therefore, for the wife to come to the marriage with money or property provided by her or by her paterfamilias as her contribution to household expenses. This is known as a dowry. So ingrained was this custom that, under Augustus’ marriage legislation, a woman’s paterfamilias could be compelled to provide her with a suitable dowry.[729](2) Rights in the Dowry
The original concept of a dowry was that it was transferred outright to the husÂband, and the wife or her paterfamilias had no rights in it either during or after the marriage. No attempt seems to have been made in earlier times to regulate what happened with the dowry following a divorce. The reason for this may be that the wife’s interests were seen as sufficiently protected by the penalty imposed for divorces that were not justified by one of the prescribed grounds. After the divorce of Carvilius Ruga, discussed above, it might be expected that steps would begin to be taken to protect wives' interests in their dowries, as it created the possibility of a wife being divorced without fault and without compensation. Whether or not this development is indeed connected with that divorce, we do see developments of this kind. The practice emerged of expressly contracting for either the dowry itself[730] or its value[731] to be returnable.
In time, the wife's right to have the dowry restored came to be implied. The wife could bring an action called the actio rei uxoriae to reclaim a share of the dowry on termination of the marriage, subject to certain deductions by the husÂband, for example for any necessary expenses he had incurred in maintaining the property.
He was, moreover, permitted to retain any profits arising from the dowry, on the basis that he bore the financial burdens of the marriage.[732] FurÂthermore, if the divorce was due to the fault of the wife or her paterfamilias (e.g. if she had committed adultery),[733] the husband could retain a sixth of the dowry for every child of the marriage, up to three. Augustus formalised these rules, and also provided that, if the marriage was terminated by the wife's death, the husband had to restore such of the dowry that had been provided by a still-living donor to that person. He was, though, entitled to retain a fifth of the dowry for every child of the marriage. The husband was also prohibited from selling any Italic land[734] forming part of the dowry without the wife's consent or from securing debt of the land even with the wife's consent.[735] The position of classical law, therefore, was that the husband was considered more of a steward of the dowry than an owner, and he was obliged to exercise the same care in managing the dowry that he did in managing his own affairs.[736]Justinian went even further. He extended the prohibition on alienation to all land, and made it apply even with the wife's consent.[737] The husband had no more right to make deductions from the dowry, except for necessary expenses, and the dowry reverted to the wife in all circumstances at the end of the marÂriage. The wife was even given an implied security over her husband's property for the dowry, with preference even over secured creditors.[738]
(3) Donatio Propter Nuptias
A donatio propter nuptias (‘gift on account of marriage') was the reverse of a dowry. It was a gift by the prospective husband to his intended bride, typically to ensure provision for her in the event of her husband predeceasing her. It was unknown to the classical law, but was introduced in the post-classical period. As an excepÂtion to the rule barring gifts between spouses, Justin104 allowed the donatio propter nuptias to be increased after the marriage.105 In addition, Justinian provided that, where a dowry was given, there had to be a donatio propter nuptias of the same amount.
One major concern in the law of marriage was the parties' respective interests in the dowry, made up of money or property brought into the marriage by the wife and provided either by her or by someone else (such as her paterfamilias'). In early law, the husband acquired outright ownership of the dowry. However, over time his rights were restricted, until he was finally little more than a custodian of the dowry for the benefit of the wife.