The remaining sections of this part deal with the “free” marriage of classical Roman law.
The Cases in this section concern general issues of marital relations. The Roman jurists fairly rarely deal with such issues, for obvious reasons: Roman marriage was so easily formed and dissolved that, in general, many of the problems that arise in our society were rare.
For example, one major problem in modern marriage centers on spousal abuse, particularly of wives, abuse that is often thought to be concealed by the “cover” of marriage. But since a Roman woman was able to leave a marriage more or less at will, this problem is never so much as mentioned by the jurists. No classical source indicates that a Roman husband had any legal right to discipline his wife physically or to require her to have sex with him.In certain respects, therefore, the liberality of the Roman marriage regime may seem attractive—like the latest thing from California! Before accepting such a judgment, however, you should consider all the social ramifications, including above all the issue of whether Roman marriage is sufficiently stable as a social and legal institution. That is, does it provide too much encouragement to individualism? Should the state have intervened more strongly to keep marriages together? These are complex questions not only because they raise difficulties across the entire spectrum of legal rules that govern marriage but also because they seem to imply the possibility of regulatory and dispute-settling institutions (such as marriage courts) that the Romans, with their limited bureaucratic capacity, would have been hard-pressed to supply. Still, even admitting this latter aspect, the Roman tolerance for unregulated marriage seems quite extraordinary by the standards of premodern societies in general; and we are therefore obliged to ask, among other things, whether Roman law's liberalism may have been compensated for, in practice, by social pressures that promoted long-term marital stability.
We begin, in any case, with a small group of sources that suggest something of how the Romans looked upon marriage.