Formation of Marriage
(1) Betrothal
A marriage would often be preceded by a betrothal, although this was not a formal requirement. The betrothal could be agreed fairly informally, and the parties themselves did not need to be present.[654] If the parties were not presÂent, however, it was necessary for them to know it was happening or to ratify the betrothal afterwards.[655] Although the actual negotiations for the marriage might be carried out by each party's paterfamilias (arranged marriages being common, at least among the elite), the parties' own consent was still needed.[656] It seems, though, that it was enough for each party to acquiesce in the choice of marriage partner made by his or her paterfamilias.
The jurist Julian tells us, moreover, that the prospective bride may only refuse consent if her paterfamilias has chosen someone to marry who was actually unfit for this.[657] Betrothals might be contracted years in advance of the marriage taking place, and they were not subject to the same minimum ages as marriage. As long as the parties were aged at least seven, they could be betrothed, even though they could not yet marry for several years.[658]Betrothal did have some legal consequences. For example, a man could recover damages if the delict of iniuria was committed against his fiancee, just as a husband could if his wife was the victim.[659] Again, a man was barred from marrying the fiancee of his father or of his son.[660] A betrothal, however, was not a marriage, and either party (or that party's paterfamilias') could break off the engagement at will, without penalty.[661] Even where there was an express agreeÂment for the payment of penalties if the marriage did not happen, this agreeÂment would be unenforceable.[662] This differs from many later legal systems, in which it has been considered an actionable wrong to break off an engagement without good cause.[663]
(2) Formal Requirements for Marriage
There were various requirements for the validity of a marriage.
If any of them was not met, the purported marriage was void and of no effect. As a result, any children of the relationship would not be considered legitimate and would not fall into their father's potestas.[664](a) Conubium
Both of the parties to a valid Roman marriage had to have conubium. As we saw in Chapter 5,[665] this was a right of marriage, that formed part of the rights of Roman citizens. It was, therefore, mostly confined to Roman citizens, although non-citizen individuals and communities sometimes had conubium as well. Non-Romans did, of course, marry, but they did so according to the laws of their own community, and so the marriage did not have the consequences of a Roman marriage. Thus, for example, if a Roman man married a woman without conubium, the children of the marriage would not fall within his potestas.
(b) Parties of Different Sexes
Marriage in Roman law was between male and female, unsurprisingly given the association between marriage and procreation. Homosexuality existed in the ancient world, of course, but it never seems to have been suggested that homoÂsexual unions should be recognised as capable of being valid marriages.[666]
(c) No Subsisting Marriage
A person could only have one spouse at a time.[667] [668] [669] If the parties purported to marry while either of them was married to someone else, not only would this second marriage be void, but knowingly to do this would incur infamia3 and liability for stuprum.3 (d) Age The parties to the marriage had to have reached puberty.[670] There was debate among jurists as to how this was to be determined.[671] The Sabinian school of jurists favoured a determination according to whether the individuals in quesÂtion had reached sexual maturity. As is well known, this is reached by different people at different ages, so the result would be that different people would acquire the capacity to marry at different times. (e) Prohibited Degrees There was a prohibition on marriage between parties who were closely related. The general rule was that two people could not marry unless they were both at least two degrees of descent from their nearest common ancestor. Thus, for example, first cousins could marry, as they were both two degrees removed from the common ancestor.[674] As might be expected, marriage between siblings was prohibited.[675] Siblings are, after all, only one degree from the common ancestor. Marriages between ascendants and descendants were also absolutely prohibited[676] There could be no marriage between a man and his great-niece or a woman and her great-nephew, the great-uncle or great-aunt being only one degree removed from the common ancestor.[677] Variations on the rules might also be introduced from time to time. The emperor Claudius[678] introduced a rule that a man could marry his brother's daughter, to allow himself to marry his niece, Agrippina.[679] Such marriages were expressly prohibited by Justinian.[680] All of these prohibitions were based on blood relationship rather than legal relationship. Persons who were biologically related within the forbidden degrees were barred from marrying, even if they had no legal relationship. For example, a freedman could not marry his biological mother or sister.[681] Another example would be a purported marriage between two biological siblings, one or both of whom had been emancipated by their paterfamilias. Even though the emancipaÂtion would have destroyed their legal relationship, they would still be unable to form a valid marriage. In addition to these rules, there were also prohibitions based on relationship by affinity (i.e. To take adoption first, similar rules applied as with blood relationships, at least as long as the adoptive relationship lasted. Where adoption created a relaÂtionship of ascendant and descendant, marriage was prohibited, and in this case the prohibition continued even if the adoptive relationship came to an end.[682] Equally, adoptive siblings could not marry. In this case, however, the prohibition lasted only as long as the adoptive relationship lasted. If, for example, one of the adoptive siblings was emancipated, the pair would cease to be related to each other and would be permitted to marry.[683] In the case of more distant adoptive relationships, the position seems to have been that marriage was only barred if the adoption created an agnatic relationÂship (i.e. a relationship through the male line). Thus, for example, a man could marry his adopted sister's daughter,[684] but not his adopted brother's daughter. Finally, certain pairings who were related by affinity (i.e. through marriage) were prohibited from marrying, even if the marriage that created the relationÂship ceased. It was not permitted to marry an ascendant or descendant of a forÂmer spouse, such as a step-child or parent-in-law.[685] Step-siblings were, however, permitted to marry.[686] (f) Consent For a valid marriage, the parties had to consent. If either was alieni iuris·, his or her paterfamilias had to consent as well.[687] A sham marriage, where the parties had exchanged apparent consent but without any genuine intention to marry, would be of no effect.[688] As might be expected, it was normal to have a wedding ceremony at which the consents would be given.[689] What is less certain is the extent to which this ceremony was necessary. Some flexibility was apparently possible, because it was possible for the marriage to be constituted in the absence of the groom, with his consent being given by letter or messenger.[690] The question is whether the cerÂemony could be dispensed with altogether. Pomponius tells us that ‘consent, not sleeping together, makes a marriage'.[691] This seems to imply that the consent to be married (known as affectio maritalis) was the sole determinant of whether the parties were married. That was cerÂtainly how the medieval canon law took these texts, considering a marriage to be formed by simple exchange of words of consent, without any need for forÂmal ceremony.[692] Following canon law, that was also the law of Scotland until such ‘irregular marriages' were abolished by the Marriage (Scotland) Act 1939.[693] It is unlikely that classical Roman law would have taken such a generous view of consents unaccompanied by formalities. Pomponius is probably simply making the point that the marriage is constituted by the parties' agreement, even before it is consummated. All the same, there does appear to have been some scope for the existence of a marriage to be established even in the absence of a formal wedding. For example, the late classicaljurist Modestinus tells us that, where a man and a woman cohabit, this ‘is to be understood not as concubinage, but as marriage, as long as she is not a prostitute'.[694] Similarly, an imperial pronouncement of the late third century held that a marriage could be demonstrated by the parties openly living together and having a child, even in the absence of the documentation that would normally accompany a marriage.[695] It is not difficult to draw an analogy between this and the modern marriage by cohabitation with habit and repute, which existed in Scots law[696] until its abolition by the Family Law (Scotland) Act 2006,[697] and which also allowed the outward appearance of marriage to stand as evidence of consent to marriage.[698] (g) Prohibited Marriages Various other restrictions existed on what was considered to be a suitable marÂriage. For example, there could be no valid marriage between a woman and her guardian or his son.[699] It was also prohibited for a senator, or an agnatic descenÂdant of a senator down to his great-grandchildren,[700] and a former slave or anyone who had either been an actor or was the child of actors.[701] Justinian's predecessor Justin, however, abolished all previous prohibitions on marriage between freeÂborn persons of different social class.[702] C.