Divorce/matrimonial property - Law of persons

Identify the different forms that marriage could take under Roman law.

• Coemptio - Ceremonial sale of wife, most conventional form

• Conferratio - religious marriage, 10 witnesses, religious sayings, cake inscribed.

• Usus capatio - if in free marriage for a year no interruption the status would upgrade to a manus marriage and woman would join potestas of husband’s family.

What were the legal consequences of a manus marriage for the wife?

• She joined her husbands familia

• Was under his power/potestas

What were the legal consequences of a free marriage for the wife?

• Meant she was sui iuris (Independent)

• Her children dint belong to her

• Had a ban on gifts to protect her

 

Was divorce prevalent in early Roman law?

• Early Rome three grounds for divorce: Adultery, substitution of keys, poisoning of children

• As fluid as marriage

When did the first attested divorce occur and what were the grounds?

• 306 BC—concerned a senator said to be expelled from the Senate for divorcing his wife without proper consultation

•     Korvelius Rugas

How was divorce effected in a marriage with manus?

• It followed the same procedure as the conjugation of marriage

• The husband ran the risk of incurring infamia if he didn’t consult his family and try to mediate the issues first.

• The wife couldn’t cancel a marriage in manus until early Empire where she could do it through unilateral repudiation.

How was it effected in a marriage without manus?

• Easily committed through intention. Ex,leaving the house for 3 consecutive nights, moving out etc

•   Didn’t need to have specific grounds

• but could anger censor if no good reason.

What is the difference between divortium and repudium?Are there any legal formalities attached to repudium?

• (divortium) was the mutual consent to divorce.

•   (repudium) was a unilateral want to cease the marriage through a formal letter

• Initially legales repudi was customary, Augustus made it legally there was more formality and had to be in the prescence of 7 witnesses to repudiating divorce

What was the function of the Lex=(legislation) Iulia de Adulteriis?

• Criminalised adultery, introduced by Augustus to discourage divorce

•    Husbands had to divorce their wives within 60 days by bringing an action forward, otherwise they’d be fined.

• Wife lost 1/3^rd of dower and couldn’t remarry lover

• Lover could lose property,  be sent to an island or to hard labour.   If caught in the act husband could kill him

What was a dowry (dos)?

• Often a customary symbol/proof of marriage

• A maintenance sum for the wife or otherwise a contribution to the marriage

• Could be contractual, equivalent of iusu fruct.

Which reforms regarding the ownership of the dowry were introduced during the reign of Augustus?

• The husband managed the dowery but didnt officially own it

• Gave women (tacit hypothec) over their husband’s property - rights to all his assets after death to reclaim dowery before credators could take priority

•   Insurance property is increasingly protected

Which additional changes were introduced during the reign of Justinian?

• Automatic right of retention abolished in favour of a legal action to prove retentions.