A Legally imposed delays on remarriage
Though Augustus' legislation enjoined widows to remarry, earlier policy penalized those who remarried too soon.
Numa, the second king of Rome, was said to have ruled that widows who remarried before the end of a ten-month mourning period for their husband were to sacrifice a pregnant cow [Plutarch, Numa 12; Humbert 1972, 113-14]. The Praetor's Edict decreed a penalty of legal infamy (infamia) against a woman (or her paterfamilias, if he had given her in marriage) who had remarried within ten months of her husband's death.9 Originally, the rationale behind the mourning period was religious: the widow should honor her dead husband and early remarriage would offend the spirits (Manes) of the dead man [Humbert 1972, 116-19]. By the late Republic, however, another justification for a ten-month delay had developed: the need to avoid turbatio sanguinis (“confusion of blood”), that is, uncertainty about the paternity of any child conceived in a second marriage [Humbert 1972, 119-31; Gardner 1986a, 50 4; Beaucamp 1990, 211-14; Treggiari 1991a, 493-5]. Ten months was considered the normal duration of pregnancy in antiquity [Hanson 1987], so a child born to a woman within ten months of her husband's death would be assumed to have been conceived from him.In the sixth book of his commentary on the Praetor's Edict, Ulpian cites the opinions of two earlier jurists, Pomponius and Neratius, for what was evidently a problematic (but no doubt fairly common) situation:
D.3.2.11 (Ulpian): However, mourning for children or parents is not an impediment to marriage.10 1: Though a husband may be such that by the custom of our ancestors he ought not to be mourned, it is not possible for her to be given in marriage within the legal time limit.
For the praetor has referred to this time, in which a husband is to be mourned; he is accustomed to be mourned on account of confusion of blood. 2: Pomponius thinks that a woman who has given birth within the legal time limit is able to give herself in marriage immediately, which indeed I believe (also). 3: However, enemies or those condemned for treason are not accustomed to be mourned, as Neratius says, nor those who hanged themselves, nor those who laid hands on themselves not from weariness of life, but from a bad conscience. (But) accordingly, if anyone after the death of a husband of this sort has given herself in marriage, she will be marked with legal infamy. 4: “He who took her in marriage” is also marked with infamy, but (only) if he did it knowingly. For ignorance of the law is not excused, but ignorance of the facts is. A man is excused if he married her by the order of the person whose power he is in, and he himself, who allowed him to marry, is marked with infamy, in each case correctly. For even the one who obeyed is worthy of pardon and the one who allowed him to marry is worthy of ignominy.The fact that a woman is not expected to mourn a husband who was a traitor or who committed suicide out of shame, but is still punished with infamia if she remarries within ten months of his death, and that she could remarry immediately upon giving birth to a child (presumed to be that of her deceased husband) within the ten-month period, suggest that by Ulpian's day the ban on remarriage within ten months was based on concerns about the paternity of unborn offspring rather than religious reasons.11 (On the other hand, divorcees were not subject to any legally opposed delay in remarrying, and in fact were required under the Augustan legislation to remarry within a shorter period of time than were widows.)
D.3.2.9 (Paulus): Men are not compelled to mourn for their wives.
There is no mourning for a fiance.D.3.2.10 (Paulus): It is customary for a woman to receive permission from the emperor to marry within the legal time limit. 1: It does not harm the woman who is mourning her husband to have become engaged within the time limit.
But though women could receive imperial permission to remarry within the ten-month period, some emperors upheld the ancient ban. Gordian sent this reply to a woman who had petitioned him:
Cod. Just. 2.11.15, 15 June, 239
Emperor Gordian Augustus to Sulpicia:
By the decree of the most splendid order, when women's grief has lessened, their more mournful dress and the other distinctive marks of this sort are given up. It is still not permitted to contract marriage within the time in which it is customary to mourn a husband, since even if she has pursued another marriage within this time, she as well as the man who knowingly took her to wife, even if he is a soldier, contracts the stain of shame, according to the Perpetual (Praetor's) Edict. Posted on the seventeenth day before the Kalends of July in the consulship of Gordian Augustus and Aviola.
The date of the decree of the Senate (“the most splendid order”) to which the rescript refers is not known [Talbert 1984, 456], but may not be much earlier than 239. It had eliminated the need for a woman to wear widow’s weeds, but had not changed the ban on remarriage laid down in the Praetor’s Edict. The “stain of shame” (labes pudoris} is the penalty of legal infamy.
Almost a century and a half after Gordian’s ruling, Theodosius I enacted new regulations regarding the mourning period.
The following excerpt is part of a longer law, one of several Theodosian laws that discourage remarriage in order to safeguard the property rights of a widow’s children. Another part of the law (not translated here) said that a widow who remarried too soon not only incurred infamia, but also could not receive anything by legacy, inheritance, fideicommissum (trust), or gift in contemplation of death, nor could she give more than a third of her property as dowry to her second husband or leave him more than a third in her will.12Cod. Just. 6.56.4, 18 December, 380
Emperors Gratian, Valentinian (II), and Theodosius Augusti to Eutropius, praetorian prefect:
If any woman, by the hastiness of her nuptials, has not at all displayed religious respect (religio) for a former husband by whom she does not have sons or daughters, indeed she shall, by the very well-known law, be infamous, unless the imperial generosity should remit a stain of this sort.
(1) But if, however, she has sons or daughters and has asked for imperial indulgence, we allow the abolition of infamia and the repeal of the remaining penalties, if she has given half of the property which she had at the time of her marriage to her son or daughter, or sons or daughters, which she had conceived from her former husband, after, of course, all formalities of donation have been completely accomplished and not even the usufruct has been retained. (2) If indeed, she has given half to two sons or daughters or more, and one (son) or one (daughter) has died intestate from a fatal lot, or another (male) or another (female) from them, we wish (the property) to belong always to the surviving brothers or sisters.
(3)But if, however, all females or all males have died intestate, consolation for her harsh fortune shall return anew to the mother, in such a way that she shall again assume this half which she had given to her sons or daughters, after the sons or daughters have died intestate, specially from the inheritance of her last (surviving) son or daughter.13
Posted on the fifteenth day before the Kalends of January in the fifth consulship of Gratian Augustus and the consulship of Theodosius Augustus.14
The reference to the lack of “religious respect” for her first husband displayed by a woman who remarries too soon suggests that in late antiquity, religious considerations regain importance as a reason for legally mandated delays on remarriage, as in early Roman law, whereas classical law had placed more emphasis on avoidance of turbatio sanguinis [Humbert 1972, 379—87].
A year later, Theodosius I enacted another law, which increased by two months the mandatory delay before a widow could remarry and removed all possibility of imperial indulgence for women who did not observe the delay:Cod. Theod. 3.8.1, 30 May, 381
Emperors Gratian, Valentinian (II), and Theodosius Augusti to Eutropius, praetorian prefect:
size=2 color=black face="Times New Roman">If any woman, having lost her husband, has hastened to wed another within the space of a year — for we add a small amount of time to be observed after the ten months, though we think even this itself is very little — branded with marks of digrace, she shall be deprived of both the honor and the right of a more honorable noble person, and she shall lose everything, which she had obtained from the property of her former husband or by right of betrothal gifts or by the will of her deceased husband. And she shall know that she should hope for no help from our generosity or special decision.15 Given at Constantinople on the third day before the Kalends of June in the consulship of Eucherius and Syagrius.
By abolishing the possibility of imperial pardon for hasty remarriage, Theodosius also effectively abrogated the other part of his law of 380, which had stipulated that in order to receive pardon, women had to give half of all their property to children by their first marriage. Therefore, in 382, he enacted a new law about the fate of property a widow had received from her first husband if she later remarried [Cod. Theod. 3.82., below in Part I.B].
In late antiquity, remarriage of a woman after divorce was also subject to an imperially mandated waiting period, whereas in classical law divorced women could remarry as soon as they wished (this did, however, lead to questions of paternity: see Chapter 4, Part I.E.2 on the s.c. Plancianum). A western divorce law of 421 imposed a one-year moratorium on remarriage on women who had been unjustifiably divorced by their husbands [Cod. Theod. 3.16.2, in Chapter 4, Part II], as did an eastern law of 449, which explicitly stated that the purpose of the delay was to prevent “doubts about the offspring” [Cod. Just. 5.17.8, Chapter 4, Part II].