Kinship in Roman Law
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The Marriage in Roman Law
Marriage or lawful nuptials (iustae nuptiae), is a solemn legal business, through which a man and a woman were united in a relationship with civil and religious effects, with the main purpose of forming a family.
This union─coniugium─was the most important legal event of a Roman citizen, since it derived effects on a personal level, on a patrimonial level, and would determine their role in civil society. For example, the paterfamilias is nothing more than a sui iuris man who has contracted iustae nuptiae .
Hence, to marry, the Romans reserved a right, the ius connubium, within the nucleus of Roman rights─ius quiritium─so that it could have legal effects. Anyway, for the Romans it was so important that it could only be exercised by Roman citizens.
Definition of Marriage
Strictly speaking, marriage in Roman law would be called iustae nuptiae. This, to represent the legal connotation with which Roman society understood the marital union, since a person could have extra-marital relations without generating a problem, but could not marry anyone else.
Marriage: Solemn act that generated civil and religious effects for the Romans.
[1]
On this, it can be seen that the Roman concept of marriage has a very specific social purpose, that of generating offspring, and that it must be circumscribed to civil law, since the Romans knew other types of non-marital relationships, such as concubinage (even sexual slavery).
The Roman definition has remained much the same until less than half a century ago in the western world of continental legal tradition, and Justinian gives us a good illustration of the concept that remained of marriage in Roman law:
Nuptiae autem sive matrimonium est viri et mulieris coniunctio, individuam consuetudinem vitae continens.
(Nuptial, no more than marriage, is the union of man and woman, which preserves their individual legacy)
Institutes [2]
(Translation from the author*)
[1]: Iustae Nuptiae | Glossary of Roman Law (Spanish).
[2]: Justinian | Institutes: Lib. 1, Tit. 9, Para. 1.
Types of Marriage
In Roman law there was only one type of marriage in the strict sense: the one that was legitimately conformed, called iustae nuptiae; However, it is common to divide marriage between two different categories depending on the in manus clause, especially when studying its legal effects, in order to understand the position in which the woman could find herself.
Clause Cum Manu
The power in manus, is the civil authority that the husband acquired by contracting a marriage with the accessory clause cum manu. It consisted of the power to dispose of women as part of the agnates to the pater, turning women into the legal position of a family child, a situation that was called loco filiae.
This power implies the parental authority of the husband towards his wife, so in principle he could sell or dispose of her. However, throughout the social and legal development of the Roman world, the celebration of cum manu marriages became less and less frequent, and at the end of the empire it was already a practically obsolete anachronistic institution.
In general, the power in manus served to legitimize social situations pre-existing to the nomination of the legal figure, in a context in which women lacked effective rights because they were not a direct part of the Roman military expansion, and therefore of a full citizenship.
Even if the woman married sine manu, that is, without configuring the clause cum manu, she would have an effective guardianship of her husband, since she would be considered an incapable sui iuris person.
Quasi-Marital Unions
Due to the special requirements that the marriage had, not any union between people would be called marital union ─iustae nuptiae─, so there were ways of referring to these situations, in which two people maintained actions, typical of a couple, affectio maritalis, without having married.
- Marriage sine connubium
- Concubinage
- Contubernal
These unions were 3, depending on the quality of the subjects who participated, when the subjects were both citizens, and only lacked the solemnities of the iustae nuptiae, it was (a) a marriage sine connubio.
When one was a citizen, and the other was a woman of inferior status, such as a liberty, a pilgrim, or a citizen without a family, since it would not be appropriate for one of them to marry and form a family, they entered into (b) a relationship called concubinage.
And if the relationship was with a slave, his own or of someone else, (c) the relationship would be a contubernal relationship.
Formation of Marriage
The main requirement for the formation of Roman marriages was the will. Being the Roman marriage contracted between citizens, who were free people, it was the persons who were going to bind themselves who had to agree to celebrate the marriage.
Roman law only established conditions of validity, without which the marriage would not have legal effects.
Precisely what differentiates a Roman marriage from other figures such as concubinage ─ which also implied affective relationships ─ were the legal effects. Hence its importance.
For this reason, many Romanists generally make the distinction of: «legitimate» Roman marriage, to represent the possibility of marriages without the fulfillment of the full validity requirements, and therefore without legal effects or civil relevance.
The requirements for a Roman civil marriage to be valid would be:
Requirements for Marriage:
Roman Citizenship
Legitimate marriage was a sign that the person belonged to Roman civil society, committing to preserve it through the institution of marriage. Hence, that inside the quiritary rights (rights of the Roman citizen) were the ius conubii, or right to contract legitimate marriages.
Consent of the Contracting Parties
If these were sui iuris, their mere consent would allow the union. If one or both were alieni iuris ─ as in most cases ─ the paterfamilias had to expressly consent the union.
Ability to Start a Family
So they must be pubescent. For the man the age of puberty was the moment in which he could engender, which the Romans placed in the 14 years; and for women to conceive, set at 12 years.
In the case of males ─ who do not have any obvious physical signs ─, puberty was confirmed by some signs of their body, in the absence of an exact age metric, that marked their physical fitness:
[...] Pueros inpubes conpertum est, if plurimo cibo nimioque somno uterentur, hebetiores fieri ad veterni usque aut eluci tarditatem, corporaque eorum inprocera fieri minusque adolescere [...]
(Boys are declared pre-puberty, if they experience excessive sleepiness from eating in quantity, which worsens towards apathy or constant drowsiness, and their bodies are less tall than when growing up)
Gelio [3]
(Translation from the author*)
Impediments
The impediments were some specific circumstances that would annul the marriage if it existed, such as:
- The agnatic, clanship or cognatic kinship between the contracting parties, but not always that of affinity.
- Widowhood in women, without having spent at least one year of mourning for her husband.
- The existence of another undissolved marriage, let us remember that the Roman marriage is exclusively monogamous, and sought to protect the identity of the agnatic children of the paterfamilias, so that more than one marriage is meaningless.
- Incapacity of one of the parties, such as dementia, this has to do with the consent requirements, since the insane people were not presumed aware of their actions.
- The castration of the husband, due to the biological impossibility of the contracting party to form a family, which was the logical end of the marriage.
[3]: Gelio | Attic Nights: Lib. 4, Tit. 19.
Legal Effects of Marriage
The institution of marriage revolved around the figure of the paterfamilias, who was the civil and religious leader of the relationships derived from marriage. The wife and children were free people linked to him, who mind them, either as alieni iuris, or as incapable sui iuris.
When celebrated legitimately, this marriage was a source of rights between the parties, such as mutual aid, the bonds of affinity between the families of the contracting parties, and the agnation or guardianship of the woman, depending on whether it was a cum manu or sine manu marriage .
It should be noted that marriage in ancient Rome could be a presumed situation, that is, it did not always require a solemn ceremony. A man and a woman who were Roman citizens and lived together with the intention of being a married couple, could be socially and legally one. But for this, no public objection that crossed out the relationship should not be known.
- Integrates the person into the family
- Integrate the person into the gens
- Integrates the person into Roman society
- Grant inheritance rights
- Submit your children to the patria potestas
In general, marriage is the foundation of the Roman family, especially because of the importance of kinship by agnation that linked only the children resulting from a legitimate civil marriage.
The Paterfamilias and the Filiusfamilias
Much of the importance of the figure of marriage is due to the fact that this was the source of parental authority, necessary to understand most of Roman private law, since the difference between paterfamilias and filiusfamilias arose from the marital union.
With this, marriage legally bound the woman, but also all the offspring of the spouses, to the power of the pater, with consequences, both legal, already mentioned before, and religious, since it was from this continuity of lineage that the Romans maintained the private cult of the manes gods.
Hence, it was so important to distinguish who were or were not agnate children, because if they were, they would be part, both of a family in the broad sense ─goods, rights, name─, and of a gens, which also brought a cognomen and participation common in rituals and cults.
To such an extent, that a son sui iuris, could be banned from claiming an inheritance if he had not formed a family ─ marrying ─ in less than a certain period after the death of the deceased.
Extinction of Marriage
Like any legal business, the Roman civil marriage could be extinguished for different reasons, the only voluntary being divorce, since death or capitis deminutio were circumstances unrelated to the marital relationship.
These causes were already related by Paulo, who states:
Dirimitur matrimonium divortio morte captivitate vel alia contingente servitute utrius eorum.
(The marriage is divided by divorce, death, captivity or also any other arising from falling into slavery)
Digest [4]
(Translation from the author*)
Grounds for Extinction:
- Death of a Spouse:
The termination of the relationship due to death, if one or both spouses die. - Capitis deminutio of a Spouse:
That is, the decrease in their legal capacity, whether this capitis deminutio minor or capitis deminutio maxima. - Divorce:
Which consisted of the legal and inter-living rupture of the marital relationship, which could occur in two ways, unilateral or bilateral:- Unilateral: called "repudiation" and consisted of one of the spouses individually declaring his intention to terminate the marriage.
- Bilateral: called "mutual dissent" and it was when, at the request of both parties, the end of the marital relationship was required. Taking into account the principle that marriage should be consensual.
[4]: Paulo | Digest: Lib. 24, Tit. 2, Sect. 1.
Marriage Dowry
The dowry was a set of goods, independent of the things that made it up, that the family of the woman gave to the husband to contribute to their maintenance. The promise of its delivery was constituted by means of a pact made between the two sui iuris that intervened in the marriage process and the mere tradition implied the transfer of the property of the dowry.
Contrary to other cultures, for the Romans it was the family of the woman that gave a dowry to the husband, considering that she would generally be under a relationship of legal and social inequality, compensated by the dowry, which was a guarantee of her maintenance.
Dotis causes perpetual est, et cum vow eius qui dat ita contrahitur, ut semper apud maritum sit.
(The dowry is a perpetual condition, which is contracted from what is given together with the vow, as long as one remains the husband)
Paulo [5]
(Translation of the author*)
The acquisition of endowments was permanent, and upon the death of the paterfamilias these became part of the inheritance of the children of the marriage. So at the beginning of the Empire, with the increase in divorces, it became customary to stipulate the return, in case of divorce, of all or part of the dowry.
[5]: Paulo | Digest: Lib. 23, Tit. 3, Sect. 1.
Roman Law
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