C Preliminaries to marriage: age, betrothal, and consent

¹ Ag^e

Girls had to be at least twelve years old to be legally married, though they could be betrothed at an earlier age:

D.23.1.14 (Modestinus): In contracting a betrothal the age of the contracting parties has not been defined as it has in the case of marriage.

D.23.2.4 (Pomponius): A girl married when she was less than twelve years old will be a legitimate wife at the time when she has completed her twelfth year at her husband's home.

Usually Roman women married in their mid- to late teens, with the elite marrying earlier, perhaps in their early teens [Shaw 1987a; cf. Hopkins 1964]. There was no legal age of marriage for men in the classical period, but few males would marry before twenty, and most seem to have married in their mid- to late twenties, with the elite again marrying a few years earlier [Saller 1987].

2    Betrothal­

In the case of first marriage for a young woman (who might be as young as twelve), the choice of spouse and arrangements for the marriage would be in the hands of her parents. They (primarily the father) would investigate the possibilities for suitable husbands and undertake negotiations with the families of potential spouses. It was assumed that parents, with greater experience of the world and society, were much better able to make this important decision than the young woman herself, who (if she had been properly brought up) would have little direct knowledge of the opposite sex.

Among the elite (about whom we have the most information), marriage was usually preceded by betrothal (sponsalia), which might last for two or more years.

D.23.1.1 (Florentinus): Betrothal is the proposal and counter-promising of future marriage.

D.23.1.4 (Ulpian): Bare consent suffices to constitute betrothal. In fact, it is agreed that an absent person can be betrothed to an absent person, and this happens every day.

D.23.1.18 (Ulpian): In constituting a betrothal it makes little difference whether this is done through oneself (either face-to-face or through an inter­mediary or a letter) or through someone else. Most often matches are arranged with third parties serving as intermediaries.

It was essential for both betrothal and marriage to be valid that all parties consent to it: the bride, the groom, and those who had patria potestas over them. (A mother's consent, while not legally required, was clearly advisable.) Although apparently straightforward, the issue of consent to marriage was complex and nuanced, and clearly depended on family inter­relationships that were beyond the scope of the law. A woman. even one still under patria potestas, had to consent to her betrothal and marriage. But “consent” could be broadly interpreted, and the absence of active objection could be construed as tacit consent [see Treggiari 1982]:

D. 23.2.2 (Paulus): Marriage is not able to occur unless all consent, that is, those who join together and those in whose power they are.

D. 23.1.11 (Julian): Betrothal, like marriage, occurs by the consent of those contracting it: and just as in marriage, it is necessary for a daughter under paternal power to consent to her betrothal.

D.23.1.12 (Ulpian): But she who does not fight against her father’s will is understood to consent.

Young men would probably have had more say in their marriage arrangements, not only because they were male, but because they would be older. The jurists stress the necessity for a son under paternal power to consent to the marriage which his paterfamilias would have arranged. But if a son actually entered the marriage even under duress, he too was understood to have consented:

D. 23.1.13 (Paulus): Betrothal is not able to take place in the name of a son under paternal power if he objects.

D. 23.2.21 (Terentius Clemens): A son under paternal power is not forced to take a wife.

D. 23.2.22 (Celsus): If, when his father forces him, he does take as wife a woman whom he would not marry of his own free will, he has nevertheless contracted marriage, which is not contracted between those who are unwilling. He appears to have preferred this course.

In reality, both sons and daughters would have been subject to considerable parental pres­sure to accept the spouse chosen for them. However, a son, being older and perhaps with greater knowledge of what the law said, would be able to avoid an unwanted marriage more easily than a daughter.

Ideally, the paterfamilias would be responsible for arranging the marriages of children under his power, and therefore his consent would be obvious. But there were times when he might be away from home for an extended period of time and unable to arrange matters personally. Sometimes children under power, particularly sons (who might be in their twen­ties) or daughters who had already been married once before, would arrange their own marriage, perhaps with their mother’s participation, as happened in the late Republic with the third marriage of Cicero’s daughter Tullia [Treggiari 1991a, 127—34].

D.23.1.7.1 (Paulus): Even in betrothal consent must be demanded of those whose (consent) is desired in marriage. Julian writes, however, that the father is always understood to consent to his daughter’s (betrothal), unless he clearly objects.

What was the legal status of a union that not only took place without the paterfamilias' consent, but to which he later openly stated his lack of consent? This is not clear from the classical legal sources, and scholars today are of different opinions.¹¹

The following statement, from a legal manual of the late third or early fourth century, reveals the tension between the idea that marriage was a public good to be encouraged and the legal authority vested in the paterfamilias:^²

Sent. Pauli II.xix.2: The marriages of those who are in their father’s power are not lawfully contracted without his agreement, but once contracted, they are not dissolved. For consideration of the public benefit is set before the convenience of private individuals.

Sometimes a father might actually refuse to arrange or allow his children’s marriages. Such obstruction ran counter to the intent of Augustus’ marriage legislation [see Part I.B], which said that Roman officials could force fathers to provide for their children’s marriages. Later, Septimius Severus and Caracalla gave the same authority to provincial governors [Treggiari 1991a, 65]:

D.23.2.19 (Marcian): In the thirty-fifth chapter of the Julian law (on the marrying of the social orders), those who unjustly prohibit the children they have in power from taking wives or marrying, or who refuse to give a dowry according to the constitution of the deified Severus and Antoninus, are forced through the provincial governors to place their children in marriage and give a dowry.

If the paterfamilias were dead, his children would no longer be under patria potestas, but would be legally independent and need no one’s consent to their marriage. Neither a mother nor a legal guardian (whether a tutor mulierum, a tutor impuberum, or a curator minorum; see Chapter 1, Part II.C and III.E) had the legal power a father had. Nevertheless, a mother and guardians did play a role in marriage arrangements, particularly if a young woman were still in her early teens or even younger. Disputes could arise where no one had potestas, as happened in the following case, referred to Septimius Severus and Caracalla [see Part II.B for an impe­rial decision of the early fifth century]:

Cod. Just. 5.4.1, 7 May, 199

Emperors Severus and Antoninus to Potitus:

When a girl’s marriage is being sought and there is no agreement between her tutor and her mother and relatives concerning the choice of a future husband, the official judgment of the governor of the province is necessary. Given on the Nones of May in the consulship of Anullinus and Fronto.

The young woman in the case above was probably still under twelve (and therefore had a tutor impuberum). The same emperors had a different opinion with regard to a woman above puberty but below the age of majority of twenty-five, who would have a curator rather than a tutor [see Chapter 1, Part III.E]:

D.23.2.20 (Paulus):... And thus Severus and Antoninus replied in a rescript in these words: “The administration of the affairs of a female ward (pupilla) pertains to the curator's duty. However, the ward can marry by her own choice.”¹³

Sometimes, however, it was unclear whether the paterfamilias was really dead, if he were away for a long period of time.¹⁴ He might have been captured by barbarians and taken across the frontier (always a possibility, particularly in the third century).

D.23.2.10 (Paulus): If the father is so far away that it is not known where he is or whether he is alive, there is rightly some doubt about what should be done. And if a three-year period has passed after there has very clearly been no knowledge of where the father lives or if he survives, his children of either sex are not prohibited from contracting legal marriage.

D.23.2.11 (Julian): If the son of a man who is among the enemy or away has taken a wife before (the end of) a three-year period of captivity or absence on the part of his father, or if his daughter has married, I think that the marriage is correctly contracted, as long as the son takes such a woman as wife, or the daughter marries such a man, as it is certain their father would not repudiate as a match.