B Sending a notice of divorce
Though formulas of repudiation like those given in the passages above are known from legal and literary sources, they were not essential to effect a unilateral divorce.
Nor was a written notice of divorce (repudium) necessary. Augustus' legislation said that in order for a unilateral divorce to be fully valid, the divorcing spouse had to repudiate the other in front of witnesses, as the following extract from Paulus' commentaries on the Augustan adultery law states [Treggiari 1991a, 453-7}:D.24.2.9 (Paulus): No divorce is valid unless seven (male) Roman citizens who have reached puberty have been summoned, other than the freedman of the person who will be making the divorce.
Publicly attested divorce was especially important for a husband divorcing his wife for adultery, because a husband who did not divorce an obviously adulterous wife could be charged with pimping (lenocinium) [see McGinn 1998, 171—94]. Moreover, many people would want to give clear evidence of intent to divorce, so that they could remarry without fear of appearing bigamous, and (in the case of women) so they could bring an action for return of the dowry. Failure to repudiate a partner publicly might cast doubt on the validity of the divorce, and could have legal repercussions:4
D.24.1.35 (Ulpian): If a divorce has not been made according to legal observance, gifts given after such a divorce have been made ineffective, since the marriage does not appear to have been dissolved.
In one of his books on Augustus' adultery law, Papinian remarks that the emperor Hadrian punished a man for adultery with another man's wife, because he had taken her home before she was divorced from her husband.
Evidently the woman was not similarly punished:D.24.2.8 (Papinian): The deified Hadrian relegated for three years a man who had led someone else's wife to his own home (in marriage) while she was on a journey and had only then sent a repudium to her husband.
On the other hand, if one spouse unilaterally repudiated the other in the proper way, it was not necessary that the repudiated spouse be aware of this:
Cod. Just. 5.17.6, 15 December, 294
Emperors Diocletian and Maximian and the Caesars to Phoebus:
Though a notice of divorce has not been handed over or made known to the husband, the marriage is dissolved. Given at Nicomedia on the eighteenth day before the Kalends of January in the consulship of the Caesars.
Ulpian, citing the Hadrianic jurist Julian, presents a case where a wife would be unaware that she was being divorced:
D.24.2.4 (Ulpian): Julian, in his eighteenth book of the Digests, asks whether a madwoman is able to send a repudium or to be repudiated. And he writes that a madwoman is able to be repudiated, since she is considered in the position of one who is ignorant. However, she is neither able to send a repudium herself, on account of her madness, nor through her curator; but her father is able to send a message (of divorce).5
By the same token, a wife could repudiate a husband who was mad — unless she was a freedwoman married to her former master [see Part I.D].
Sometimes, even when a notice of divorce was sent, the divorce might not be finalized. This excerpt is from the first book of Papinian's commentary on the adultery law (whether or not someone was known to be divorced would be relevant to the question of liability for prosecution under the adultery law):
D.24.2.7 (Papinian): If the person who gave a notice of divorce to be handed over (to the other spouse) came to regret it, and the notice of divorce was handed over in ignorance of this change of mind, the marriage ought to be said to endure — unless, upon learning of the change of mind, the person who received the notice wanted to dissolve the marriage himself. For in that case the marriage is dissolved by the person who received the notice.