Manus and marriage43
The Roman jurists pay little regard to marriage except as a means by which a pater obtains potestas over his children born in a legitimate Roman marriage.
Early Roman marriage involved the subordination of a wife to her husband: she was said to be in manu, in the hand of her husband. Where, as often, he was himself under patria potestas, she was additionally subordinate to his paterfamilias. Free marriage without manus developed later and rapidly became the norm in late Republican and imperial Rome. It is convenient to discuss it first.Marriage Sine Manu
To effect a valid marriage there must be capacity (conubium) between the parties.44 A freeborn Roman citizen could freely marry another freeborn Roman citizen by the middle of the Republic, although before the lex Canuleia of 445 BC there had been a bar to marriage between patrician and plebeian, as laid down in the Twelve Tables. Until the Empire there was a limitation on marriage between the freeborn and the freed, descendants of manumitted slaves, though the exact details are uncertain. In the later Empire a formal limitation was again imposed upon marriage between the senatorial class and the freed: the wife of the emperor Justin, Justinian’s adoptive father, was declared to be freeborn so that he could marry her. That there were further limitations in practice is illustrated by the legislation of Justin permitting marriage with reformed actresses, which paved the way for his nephew Justinian’s marriage to Theodora.45 Certain relatives could not intermarry. These included ascendants and descendants, including adoptive relationships even if terminated, and siblings (but here a former adoptive relationship was not a bar).
Uncles and aunts could not marry their nieces and nephews, except that legislation was passed under Claudius to permit marrying a brother’s daughter, in his case Agrippina. This was reversed by Justinian. Even where there was conubium a marriage might be barred where there was a risk of undue influence: tutors were unable to marry their female pupils owing to a senatusconsultum of Marcus Aurelius circa AD 175. Provincial governors could not generally marry in their province.46The parties to a marriage needed to be capable of consummating it: for females this was early fixed at 12 years of age. In the classical period the Sabinian and Proculian schools ofjurists disagreed on whether it was fixed at 14 for boys (the Proculian view) or still had to be a matter of fact requiring inspection, as the Sabinians and the older view maintained.47
Although the position was possibly different in early law, by the late Republic the consent of both parties to a marriage was required. Those incapable of such consent - the mad - were unable to marry for this reason. But the consent might be only nominal: Celsus holds that, although consent cannot be compelled, an allegation that the consent given was constrained will not of itself invalidate a marriage.48
Where a partner to a marriage was in someone’s potestas, that person had also to agree for the marriage to be valid. This is still stated to be the law by the jurist Paul, writing in the early third century AD,49 despite the fact that entering into a free marriage did not alter the married person’s personal status. Anyone subordinate to a paterfamilias before marriage remained so afterwards. That the concern was not entirely about legal rights is reflected in the fact that, if the paterfamilias were a grandfather, the father, in the intervening generation, had also to agree.
In strict law there was no need for any formal element to supplement the consent of the parties (and their patresfamiliarum).
As Ulpian says, marriage is made in the mind not in bed.50 But proof of marriage would frequently require some evidence of form. The forms of manus-marriage were unambiguous, but as free marriage grew up as a substitute for these no standardization was achievable. Moreover, as noted before, the jurists were not interested in marriage as such, for it transformed few if any legal relations, but only as a means for the creation ofpatria potestas. The most common sign of marriage was the leading of the woman into the marriage home. The juristic texts which speak of it being possible for a man to be married in his absence, but not for a woman to be, mean that in the husband’s absence a woman may be led to the matrimonial home by another. It is likely that with both parties present no further action than consent was necessary for a marriage to be created. We learn of other peripheral acts involving the use of fire and water and words such as ‘Wherever you are Gaius, I am Gaia’.51 But none of these was essential. Nor was it necessary that the marriage be consummated.Marriage Cum Manu
Very different were the older forms of marriage leading to the wife’s subordination in manu. There were three ways in which such a marriage might be established.52 lang=EN-US style='font-style:italic'>Confarreatio was a religious rite, possibly originally restricted to patricians. The ritual involved sacrifice and the offering of cakes of wild wheat or spelt (far) and the use of solemn words in the presence of ten witnesses. In the Republic the priests of the State religion had to be both married themselves in this form and be themselves the offspring of a manus-marriage. Both the complexity of the ceremony and the consequences for the woman of subordination in marriage led to its disuse, according to Tacitus, and legislation was passed under Tiberius to enable priests to marry using the forms but without the legal consequence to enable the needs of religion to be met.53 Coemptio, a form of fictitious bride-purchase, was the standard form for ordinary Romans wishing to enter into such a marriage.
The woman would be mancipated to her husband, in the presence of a scale-holder and witnesses. Gaius tells us that special words were used to indicate that the purpose of the formal sale was marriage and not servitude, but in view of the result — the subordination of the woman within her husband’s family - this may be a later rationalization.54 It seems likely that this form of marriage died out at the beginning of the Empire. These forms did not exhaust the possibilities of creation of manus-marriage. Gaius tells us that, if a man and a woman lived together for a year as husband and wife, then at the end of the year the woman entered her husband’s manus by usus (use). The similarity to the mode of acquiring another’s property by a year’s usucapio is striking. Gaius, writing at a time when free marriage was the norm, assumes that the parties were already married, but it is probable that originally this was a mode by which those who were unmarried formally became married in the standard form in which the wife was subordinated. We are told of various devices developed to prevent the presumption of manus arising — such as the wife’s absenting herself from her husband for three consecutive nights, applying a rule of the Twelve Tables.55 By Gaius’ time such subterfuge was no longer necessary and there may have been legislation to this effect in the late Republic which has not come down to us.56A woman in manu had left her family of birth and joined her husband’s family. She was said to be in the manus of her husband and in the potestas of his paterfamilias, if any. She is sometimes said to be infiliae loco to her husband, in the position of a daughter, but this is more a comment on her acquiring rights of inheritance similar to a daughter than on her social position.
Divorce
Manus-marriage could be dissolved by appropriate actions.
A ceremony of diffarreatio served in case of marriage by confarreatio; for those married by coemptio or usus a process of remancipatio to the former paterfamilias, or emancipatio if there were none such, served to terminate both the marriage and the wifesize=2 face=Arial>’s subordination to her husband.In the case of free marriage, formed by the consent of both parties, dissent - a settled will not to remain married on one side - was sufficient to terminate the union. The Augustan lex Julia de adulteriis, which imposed penalties on those who formed sexual relations whilst married to another, forced the introduction of a witnessed transaction with seven witnesses (borrowed from the participants in an emancipatio) to free those who intended to remarry from the risk of accusation of adultery.57 Divorce, like marriage, remained a matter of will or lack of it until the end of the Roman period. When after the conversion of Constantine Christian emperors sought to restrain unjustified divorce in accordance with Christian doctrine, this had to be effected by means of criminal sanctions on those who continued to exercise their legal powers.58
Dotal Property
Although a matter of property and not strictly connected with status, it is convenient to state here the basic features of the law relating to dos (dowry). The existence of a dowry was one of the principal overt markers of the existence of a free marriage. It was not, however, a necessary feature of the institution and had to be specifically created. To create a dos on marriage, property was transferred, actually or potentially, from the wife or her family to the husband or his family. The conditions under which the dotal property could be enjoyed depended upon the details of the arrangement. Fundamentally it belonged to the husband (or his paterfamilias) during the marriage, but he was bound to exercise care in its management and not to dissipate it.
Further conditions might be attached to it by agreement between the parties.On the termination of the marriage, by death or divorce, the fate of the dotal property depended both upon its manner of creation and the actual circumstances of the termination. The jurists distinguish a number of types of dos. Profectitia was dos provided by the bride’s father or ancestor (or by another on his behalf). Where a marriage ended by the wife’s death, dos profectitia returned to the donor if he were alive but, if not, it was retained by the husband. If there were children from the marriage, then the husband could retain one-fifth of the whole for each child against the donor. Where the husband died, the wife took the dotal property: it was her means of support and in effect a share in her own family property. If the marriage ended in divorce, then in principle the wife took the dos, but if she or her father caused the breakdown without sufficient justification, the husband was entitled to retain one-sixth for every child from the marriage up to three (i.e., up to half of the dowry). He could also claim a retention if the wife’s adultery occasioned the breakdown. When the wife herself provided the dos it was termed adventitia. This the husband kept on his wife’s death, whilst it returned to her, on general principle, on his. Dos provided by anyone else was receptitia. This was always regulated by agreement about how it was to be returned. The dotal property became the husband’s on marriage and it did not automatically transfer at the end of the marriage. The above rules are in effect the conditions under which actions could be brought to require him to re-convey.59
The Roman system of dotal property was modified in the later Empire under the influence of Greek law practice, within which there was a preference for mutual gifts. Donatio ante nuptias was a gift made before marriage by the husband to the wife, though the property itself continued to be managed by the husband. Legislation provided that the donatio was to go to the survivor of the marriage or to the one divorced, but the rules were frequently changed in the later period.60
Gifts Between Husband and Wife
In the old form of manus-marriage a married woman owned no separate property and both partners were members of the same family as regards inheritance rights. But in the Empire those marrying freely remained separate persons in separate families. On death, wills apart, members of their respective families became entitled to inherit, but spouses ranked quite low down on the praetorian scheme of intestate succession. In these circumstances the possibility that marriage partners might transfer significant elements of their wealth to each other during the marriage came under scrutiny at the moment of inheritance and a rule, of uncertain date and origin, arose that no gift between husband and wife was valid. Exceptions included small gifts as presents and gifts subsequently validated by being confirmed in a will (which had the effect of trumping the rights of intestate heirs).