Free Marriage
(1) Prevalence and Constitution
In the classical law, the normal form of marriage was the free marriage. There is, however, much about the process by which this came to be the case that we do not know.[712] We do not know when and how free marriage developed.
We do not know whether free marriage was always possible, or whether it only became possible at some point during the Republic. It is true that the existence of usus as a way of constituting a manus marriage suggests that free marriage existed already by the time of the Twelve Tables in around 450 BC, for it assumes that the parties are already married before the year of usus expires. However, the suggestion has also been made that usus originally existed to cure defects in the marriage ceremony or to regularise informal cohabitation as marriage. We cannot be sure when or why free marriage became the dominant form, though there is a widespread scholarly view that the decisive moment was around the end of the third or beginning of the second century BC.[713] We do not even know how the distinction between free and manus marriage is best characterised. Are these to be viewed as two distinct forms of marriage, or are marriage and manus two separate, though related, institutions? On the latter view, the marriage relationship as such is the same in both forms, and the difference is that in a manus marriage the wife has submitted to an additional legal relationship in the form of manus.[714] What we do know is that, by the end of the Republic, manus marriage was uncommon, and free marriage was the norm. This was constituted simply by consent, as described above.(2) Legal Consequences
The main legal consequence of a free marriage, as with a manus marriage, was that the children of the marriage were the legitimate children of their father. As far as the spouses' relationship was concerned, however, there were surprisingly few legal consequences to the free marriage.
Neither husband nor wife changed family. The wife remained in the potestas of her own paterfamilias or, if she was sui iuris, she remained so.[715]One striking consequence of the marriage, however, was that gifts between the spouses were generally void. Ulpian tells us that this arose ‘from custom', in order to prevent couples' mutual affection causing them to impoverish themÂselves.[716] There were, though, some exceptions to this rule. For example, convenÂtional gifts (such as birthday presents) were permitted, as long as they were not excessively valuable,[717] as were payments to the wife for household expenses.[718]
(3) Divorce
As a free marriage was based on the parties' consent (and on the consent of each party's paterfamilias, if he existed),[719] likewise was it brought to an end by the withÂdrawal of that consent.[720] When either party intended permanently to bring the marriage to an end, the marriage ceased.[721] It was not necessary to establish any ground justifying the divorce. The emphasis here is on the word ‘permanently’, however. Thus, things said or done in anger did not end the marriage unless perÂsisted in. Accordingly, if one spouse purported to repudiate the marriage and left, but returned shortly afterwards, the marriage was considered to have continued.[722] Divorce in classical law was notable for its ease and informality, although the rule emerged in the Empire that notice of the divorce had to be given in the presÂence of seven witnesses.[723] In principle, though, it was enough simply that one or both of the spouses withdrew the intention to be married (affectio maritalis)[724]
It might be expected that this would change after the conversion to Christianity.[725] However, while there were attempts to reduce divorce numbers by penalising those divorcing without good cause,[726] there was no attempt to make the divorce itself ineffective. The one exception to this is Justinian, who abolished divorce by mutual consent in most circumstances. This provision was, however, repealed shortly after his death.[727]
E.