In modern legal systems, the requirements for marriage typically fall into three broad categories. First, there are capacity requirements, answering the question: “Who can marry whom?”
Such capacity requirements regularly specify minimum ages and appropriate conditions of mental and physical health, and they also often prohibit, for instance, incestuous marriages or polygamy.
Second are consent requirements, which establish the basis of a marriage in the free will and honest intention of the parties who enter into it, and in some instances also in the required assent of their parents or guardians. Third are process requirements, which set up certain formalities whereby parties who are eligible to marry, and who have the necessary agreements, can then go about marrying. The process of marriage typically falls into two stages: the couple must first obtain a marriage license (the government uses licensing mainly to implement its capacity requirements for marriage); and then they must solemnize their marriage through a formal ceremony conducted by a designated civil or religious authority.As we shall see, Roman marriage law has rules in all three categories, but they are organized in a distinctive and (to us) somewhat joltingly idiosyncratic way. Most developed are the capacity requirements, which involve not only the sorts of rules familiar to us but also legal restrictions resulting ultimately from social prejudices (bans on marriage with certain social groups) or from public policy (encouragements to marry and procreate). The greatest differences, however, are in the consent and process requirements, where the Romans seemingly pared the marriage process down to a bare minimum (the Roman government did not license or even register marriages, nor did it prescribe any specific ceremony for marriage) and instead used agreement (consensus) as a sort of a litmus test for both the inception and the continued existence of marriage. Such extreme legal simplicity has both advantages and disadvantages: limited regulation of the marriage process eliminates the need for a large government bureaucracy but risks insecurity within a critically important social institution.
For present purposes, we will generally assume that marriage is occurring between two sui iuris Roman citizens.
For the most part, therefore, we will ignore here the potential influence of the paterfamilias on the marriage process, since this influence is better considered in relation to patria potestas (see Cases 98-107); but it is important to stress that a fathers approval—or at least the absence of his disapproval—was often decisive in the marriage process.As you read the Cases in this part, consider both the advantages and disadvantages of the Roman approach to marriage. It has often been argued that the Roman legal model of marriage was constructed entirely, or nearly entirely, on a “contractual” framework, in which, provided that the couple met certain formal capacity requirements, their mental agreement to marry created the marriage in essentially the same way that their agreement on the terms of a contract of sale would create a sale, with no further act required. The Cases below should give you ample opportunity to consider whether this argument is correct.
More on the topic In modern legal systems, the requirements for marriage typically fall into three broad categories. First, there are capacity requirements, answering the question: “Who can marry whom?”:
- In modern legal systems, the requirements for marriage typically fall into three broad categories. First, there are capacity requirements, answering the question: “Who can marry whom?”
- 3 Two Categories of Development Rights
- Many carnivores have broad diets
- CASE 12: Incentives to Marry and Reproduce
- A Question of Value
- Some broad claims
- Ecology is broad in scope
- CASE 78: Formal Requirements?
- Locating Revelations Within a Broad Conceptual Framework
- CARRYING CAPACITY