D Freedwomen and divorce

Marriage between a man and his former slave was not forbidden except to members of senatorial families [Chapter 3, Part I.B.4], and seems to have been quite common.

A man’s manumission of his slavewoman for the purpose of marriage did not have to meet the age requirements of the lex Aelia Sentia.¹ Thus the emperors Diocletian and Maximian replied to a petitioner, who may have been a man who wished to marry his freedwoman:

Cod. Just. 5.4.15, 292-305

Emperors Diocletian and Maximian Augusti and the Caesars to Titianus:

It is not forbidden for a manumittor to take his own freedwoman as wife, as long as she is not among those persons who are especially prohibited, and it is quite certain that legitimate children are born to their father from this marriage. [not dated, but between 292-305]

style='font-size:8.5pt'>The freedwoman had to agree to the marriage (but in such cases it must have been rather difficult to refuse):

D.23.2.28 (Marcian): A patron is not able to marry an unwilling freedwoman.

Because marriage to her patron elevated a freedwoman to the level of a respectably married woman, he could not demand the services (operae) normally expected of ex-slaves by their patrons [see Gardner 1993, 20—32 on operae]. The emperor Alexander Severus had to tell one such patron:

Cod. Just. 6.3.9, 20 February, 225

Emperor Alexander (Severus) Augustus to Laetorius:

You have increased the rank (dignitas) of your freedwoman by marrying her, and therefore she should not be forced to offer services to you, since you can be content by the benefit of the law, because she cannot legally marry someone else if you are unwilling.

Given on the tenth day before the Kalends of March in the consulship of Fuscus and Dexter.

Alexander's reply refers to a significant restriction on freedwomen, introduced by Augustus in his marriage legislation [see Chapter 2, Part I.B]: though a freedwoman wife apparently could leave her patron husband, she could not make a valid marriage with someone else.

Her marital status was in a sort of limbo.¹¹ The following passage and the other excerpts from Ulpian below [D.23.2.45.4, 5 and 6] are from his commentaries on the Augustan laws:

D.24.2.11 pr. (Ulpian): In regard to what the (Augustan) law says: “A freedwoman who has married her patron is not to have the power of effecting a divorce,” this does not appear to have made the divorce invalid, because it is usual to dissolve marriage by civil law. Therefore we are not able to say that the marriage still exists, since there has been a separation. And so (the jurist) Julian writes that she does not have a legal action for return of dowry. Therefore quite rightly, as long as her patron wants her to be his wife, she does not have the right of marriage (conubium) with anyone else. For since the maker of the law understood that the marriage was as it were broken by the freedwoman’s act, he took away from her the right of marriage with another. Therefore whomever she has married, she will not be considered as a married woman. Julian, indeed, thinks further that she is not able to live as the concubine of another (man other than her) patron. 1: The law says: “As long as the patron wants her to be his wife.” And it is necessary both that he want her to be his wife and that he continue to be her patron; if therefore he should cease to be her patron or to want her (as wife), the law’s authority has ended.¹²

D.23.2.51 pr. (Licinnius Rufinus): A slavewoman manumitted “for the sake of marriage” is not able to be married by anyone other than the man by whom she was manumitted, unless her patron has renounced marriage with her.

Cod. Just. 5.5.1, 222-235

Emperor Alexander Augustus to Amphigenes:

Your freedwoman, who is also your wife, if she has left you when you were unwilling, does not have the right of marriage (conubium) with another, if you still want to have her as your wife.

As with consent to marriage [see Chapter 2, Part I.C.3], so with divorce there was some legal debate as to what constituted consent or lack of consent on the part of a patron husband. What if the patron was no longer in his right mind, or did not even know about the divorce? Clearly, he could not consent to a divorce, and so the freedwoman was unable to make another legal marriage (cf D.24.2.4 in Part I.B for divorce from a madman).

D.23.2.45.5 (Ulpian): Finally, the (Augustan) law says “her patron being unwilling:” we ought to accept as “unwilling” he who does not consent to the divorce.

Therefore, by divorcing a madman, she has not released herself from the necessity of the law, nor (does she) if she has divorced a man when he did not know (that she was divorcing him). For he is more correctly said to be “unwilling” than he who has refused.

More questions arose in the case where the patron was a captive outside the Empire. Normally, Roman marriages were considered dissolved if one party was in captivity.¹³ To the jurist Julian and his adherents, the freedwoman wife would be an exception to this rule. But Ulpian regretfully disagreed:

D.23.2.45.6 (Ulpian): If it is proposed that a patron was captured by the enemy, I am afraid that in marrying she is able to have conubium (with someone else), in the same way that she would have it if he were dead. And those who approve the opinion of Julian would say that she does not have conubium. For Julian thinks that a man's marriage to his freedwoman lasts even in captivity, on account of the reverence (owed by her) for her patron. Certainly if her patron has been led into some other form of slavery, I have no doubt that the marriage would be dissolved.

In some cases, a freedwoman could marry against her patron’s will; for instance, if she had refused to marry her patron in the first place, or if the patron was not the woman’s former master, but had freed her at the request of her deceased master:

D.23.2.45.4 (Ulpian): This chapter (of the Augustan marriage legislation) pertains only to the married freedwoman; it does not pertain to the one who is engaged. And therefore if a freedwoman fiancee has sent a message (of repudiation) to her unwilling patron, she has the right of marriage with another.

D.24.2.10 (Modestinus): A freedwoman whom her patron has married is not able to divorce him if he is unwilling, unless she was manumitted by means of a fidei-commissum}^ For in that case she is able to, though she becomes his freedwoman.

Augustus' law was anxious to preserve the rights of the patron, who (as Alexander Severus remarked in his rescript to Laetorius, above) had honored his former slave and increased her dignitas by marrying her.

How did freedwomen feel about this restriction on their freedom to divorce? We have no testimonies from freedwomen themselves, but an unusual inscription suggests that at least one freedwoman felt less grateful to her former master than he expected. A ftnierary ahar erected in Rome in the latter haff of the first century by Junius Euphrosynus (whose name suggests strongly that he himself was a freedman) and his wife Junia Acte commemorated the death of their nine-yerr-old daughter, Junia Procula. It is typical of many such funerary monuments for children by their parents, expressing grief and a hope that the deceased one will rest peacefully. But at some later point, Junius Euphrosynus had another text carved on the back of the altar — a curse, calling on the spirit of the dead Procula as witness of her mother's perfidy. (Acte's name was also erased from the inscription on the front of the altar commemorating her daughter.)¹⁵

CIL VI.20905 (rear) c.80 C.E.

Here the eternal marks ofinfamy¹⁶ have beenwrillen for Acte the freedwoman, the poisoner, faithless and deceitful, hard-hearted. (I bring) a nail and a rope of broom so that she may bind her own neck, and burning pitch to consume her evil heart. Manumitted free of charge, she cheated her patron, following an adulterer, and she stole away his servants — a slavegirl and a boy — while her patron was lying in bed, so that he pined away, an old man left alone and despoiled..,.¹⁷

Junius Euphrosynus' freedwoman could not legally divorce him and marry another, but she could still leave him to live with an “adulterer.” In such cases, the hope of divine intervention by the spirits of the dead promised more relief to the abandoned husband than the law.

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Source: Grubbs J.E.. Women and the Law in the Roman Empire. Routledge,2002. — 374 p.. 2002

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