Society and Culture - PART 2

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The Concept of Family and Marriage in Roman Law

1. Familia

The Latin word familia, which in most languages has been adopted as such, is not identical in its full semantic scope with the word “family.” Namely, the content of the term familia is significantly broader than that of “family,” since it more precisely refers to the household as a whole, that is, it encompasses both the persons who are part of the family and the things, as the jurist Ulpian informs us in the Digesta (D. 50.16.195.1–2):

“1. Let us consider how the designation of "household" is understood. And indeed it is understood in various ways; for it relates both to things and to persons: to things, as, for instance, in the Law of the Twelve Tables in the words "let the nearest agnate have the household." The designation of household, however, refers to persons when the law speaks of patron and freedman: "from that household" or "to that household"; and here it is agreed that the law is talking of individual persons. 2. The designation of households relates also to any kind of body (corpus) which iscovered by a legal status peculiar to its members or common to an entire related group. We talk of several persons as a household under a peculiar legal status if they are naturally or legally subjected to the power of a single person as in the case of a head of a household (pater familias), the wife of a head of a household (mater familias), a son-in-power (filius familias), a daughter-in-power (filia familias), and those who thereafter follow them in turn, as, for instance, grandsons and granddaughters, and so on.” (trans. Watson 1985, 463-464).

“'Familiae' appellatio qualiter accipiatur, uideamus. et quidem uarie accepta est: nam et in res et in personas deducitur. in res, ut puta in lege duodecim tabularum his uerbis 'adgnatus proximus familiam habeto'. ad personas autem refertur familiae significatio ita, cum de patrono et liberto loquitur lex: 'ex ea familia', inquit, 'in eam familiam': et hic de singularibus personis legem loqui constat. Familiae appellatio refertur et ad corporis cuiusdam significationem, quod aut iure proprio ipsorum aut communi uni-uersae cognationis continetur. iure proprio familiam dicimus plures perso-nas, quae sunt sub unius potestate aut natura aut iure subiectae, ut puta pat-rem familias, matrem familias, filium familias, filiam familias quique dein-ceps uicem eorum sequuntur, ut puta nepotes et neptes et deinceps.”

From the excerpt, it is clear that into the Roman familia enter all persons who are under the power of the father of the household (pater familias), who are likewise defined as members of his household through the qualifier familias. In a broader sense all blood relatives (cognati) or relatives by marriage also enter into the familia. In an even broader sense, the Roman family encompasses the entire personal property consisting of physical objects and of slaves. The very way of structuring family dynamics and hierarchy indicates that the family was considered a building block of Roman society and was metaphorically understood as a microstructure of the state. Hence it was very important to regulate relations within the family by establishing a stable hierarchy and by enacting laws that would support it. This interpretation is supported by the etymology of the very word familia, which, according to de Vaan (Etymological Dictionary of Latin and the other Italic Languages, s.v. famulus), derives from Proto-Indo-European *dhh1-m-elo- “foundation, base,” and as Indo-European cognates cites the Greek words θεμείλια “foundations,” θεμέλιος “that which belongs to the foundation,” as well as θέμις “law.” Namely, everything that belongs to the house—the base—the foundations, including the structure itself, as well as the relations among the persons who come from the same structure—is called familia. A similar meaning has the Greek οἶκος “house,” “home,” “household,” the basis of all coinages with eco- (economy, ecology, etc.), which has the same Indo-European root *ueiḱ-/*uoiḱ- as Lat. vicus “a group of houses,” “village.” The Slavic word „семејство“ (“family”), for its part, according to Preobrazhenskii (Этимологический словарь русского языка, s.v. семья), comes from the Indo-European root *kei- “to lie,” “to live” (Gr. κεῖμαι “to lie”), from which derive the formations for “dwelling” and “place of residence.”

A person’s belonging to a given family (familia) played a great role in Roman social and legal life. For determining a person’s rights, his or her status within the family is of great importance, that is, whether the person is independent, under his or her own power (sui iuris), or under the power of another (alieni iuris). Persons with alieni iuris status were under the power of the father of the household (pater familias), who need not be the biological father, but is simply the eldest member of the family, who has sui iuris status and enjoys all the rights granted to him as a Roman citizen (civis optimo iure). The father of the household is the pillar in the Roman family system, since his power over the other members in the family constituted the bond that connects those members into a community. Typically, the father of the household has power over (1) his wife (uxor = lawful wife), if she has entered into the marriage called cum manu (“under the hand,” i.e., under the husband’s power); (2) his children; (3) his grandchildren, i.e., the descendants of the sons who are under his power (potestas); (4) his legitimated and adopted children; (5) the slaves and other individuals dependent upon him in a similar way. The term agnatio designates that bond created among the members of the family, which need not be blood-kin. Blood kinship, called cognatio, did not have such legal significance in the earlier period of the Roman state, but gradually became an important factor (a process that began toward the end of the Republic), which is of particular importance for intestate succession. In the later Roman Empire, agnatic kinship had no significance, and Justinian finally broke with it in Novella 118.
The condition for creating a Roman family—familia—is not the conclusion of a marriage, but the change of family status from alieni iuris to sui iuris. This is achieved either by the emancipation of persons alieni iuris while the father of the household is still alive, or, after the father’s death, only by those persons who are immediately under paternal power (the so-called sui heredes). In this way, they create their own family even without having a spouse and offspring. But when the filia familias (the daughter in the family) is emancipated, she herself constitutes her own family, which ends with her, since if she marries, her children will be in the agnatic family of the husband: “The woman is both the beginning and the end of her own family.” (Mulier autem familiae suae et caput et finis est. Digesta 50.16.195.5).

2. On Marriage

For the family to develop further, it is necessary to conclude a marriage, in which children will be created by natural means and/or through adoption. In Latin the word “marriage” has three designations with different etymologies, which are used equally and point to the different functions and tasks arising from this union: coniugium; nuptiae; matrimonium. (1) Coniugium points to the mutual bond (quasi commune iugum), the joining between man and woman. (2) Nuptiae is connected with the verb nubere, which denotes a ceremony in which the bride removes the veil, since nubo also has a transitive meaning “to cover with a veil,” and has the same etymology as nubes (“cloud”) (Oxford Latin Dictionary s.v. nubo). (3) Matrimonium is a term that points to the duties of the mother in the union (matris (mater = mother) munus (moenus = duty, obligation)). All these designations refer to the relation created between man and woman, which by law ought to be monogamous (no one may have more than one wife) and exogamous (the future spouses must be sought outside the clan community) as confirmed in the Codex of Justinian:

“It is commonly known law that no one who finds himself under the dominion of Rome can have two wives, since even in the Praetor s Edict men of this type have been marked with legal infamy (infamia). A judge with the appropriate jurisdiction will not allow this matter to go unavenged.” (trans. Frier 2021, 1129)

“Neminem qui sub dictione sit Romani nominis, binas uxores habere posse vulgo patet, cum et in edicto praetoris huiusmodi viri infamia notati sint. Quam rem competens iudex, inultam esse non patetur.” (Cod.Just. 5.5.2. De incestis et inutilibus nuptiis)

However, the laws—as well as the designations for marriage cited above—refer to marriage founded on ius civile, the law enjoyed only by Roman citizens (cives Romani), who have ius conubii (the right to lawful marriage, iustum matrimonium), and only such a marriage can create a familia. In such a marriage, the rights of both spouses are protected in relation to their property and inheritance, as well as in case of divorce. But if it is a marriage arising from the customs of other peoples (ex iure gentium), or, in general, a union between a man and a woman who do not have ius conubii, then it is a case of an illegitimate marriage—matrimonium iniustum or non legitimum—which does not constitute a familia. In unlawful marriages, the rights of neither the spouses nor the children are protected, since children born in such a marriage are themselves considered illegitimate and receive the designation naturales (“natural, born”), instead of legitimi (“legitimate”). Their mother, moreover, will never become uxor or coniunx, the two terms that indicate that the woman is in a lawful marriage (matrimonium iustum). For a lawful wife the term marita—the feminine equivalent of maritus, “husband”—is also used more rarely.

Unlawful unions also have special designations:

(1) Concubinatus, a type of union authorised under Augustus from the Lex Iulia et Papia, pertains to persons who have unequal status, provided the man is not already in a lawful marriage. The woman in this union is called concubina (“concubine,” with whom the man shares a bed); she is neither pellex (“mistress”) nor uxor (“lawful wife”), but uxoris loco (“in the place of a wife”). Children from this union are not legitimi, but neither are they spurii (“bastards”), rather naturales (“natural [or born] children”).

(2) Contubernium is a union between a free person and a slave-woman or between slaves. Literally, it means “shared tent,” that is, a shared dwelling of slaves who are married; hence the derived meaning of a union, clearly outside the legal provisions. Contubernium becomes iustum matrimonium when the slaves become free.

The lawful marriage, on the other hand, can rightly be called a process, since it unfolds in several stages. The first stage is the betrothal (sponsalia), then the promise of the dowry (dotem promittere, dotis promissio/dictio), the marriage ceremony (nuptiae), and the dissolution of the marriage (dissolutio matrimonii), which most often results from the death of one of the spouses, or from divorce (divortium); in any case, the dissolution is usually accompanied by the return of the dowry (dotem remittere), with which the obligations between the spouses end. If there are children, they, of course, remain in their pater familias houshold.

2.1. Betrothal

Betrothal is part of the marriage process (nuptiae) and represents a formal promise; hence the name sponsalia (spondeo = “I solemnly promise”), i.e., engagement. At this act it is customary for the promise of a dowry (promissio dotis) to occur, as well as agreements (pacta) in case of departures from the legal provisions concerning the dowry. Fathers arrange a future marriage only if the prospective bride and groom within the family have alieni iuris status. That means they are under paternal power (patria potestas). Even if they are under paternal power, they may refuse to give consensus, which is one of the conditions for arranging the betrothal and concluding the marriage. But that right is limited for the girl, since she may refuse her father’s choice only in the case that he has chosen a profligate or a shameless man (Digesta, 23.1.12).

Although in the earliest period, betrothal was an informal act without specific legal consequences, a formal contract and promises often followed, which carried certain consequences. Gradually, sponsalia became a legalised part of the nuptiae process. In classical law, one party couldn't sue the other for damages due to a broken promise, owing to the rule that marriage ought to be free (Libera matrimonia esse antiquitus placuit; Cod. Just. 8.38.2).

Unlike marriage, a written document is not required for the betrothal, nor are witnesses. What is often used are intermediaries, the so-called matchmakers. Most often, the matchmaker is the pater familias, but in Justinian’s Codex (Cod. Just. 5.1.6) it is stated that the matchmaker can also be an outsider (extraneus), who may earn 5% of the dowry amount. This is, in fact, an imperial rescript that limits the sum that the intermediary may take.

Regarding age, the same restrictions do not apply as for concluding a marriage, since the future bride and groom may be minors, but at an age at which they understand what is happening to them, and that is seven years. Elsewhere, it is stated that girls may be betrothed even when they are born.

2.2. Concluding a Lawful Marriage

Under the title De ritu nuptiarum (“On the custom of marriage”) in book 23 of the Digesta a definition of marriage is immediately given according to the jurist Modestinus:

“Marriage is the union of a man and a woman, a partnership for the whole life involving divine as well as human law.” (trans. Watson 1985, 199)

“Nuptiae sunt coniunctio maris et feminae et consortium omnis vitae, divini et humani iuris communicatio.” (D. 23.2.1)

Further, follow the rules concerning the conclusion of marriage, of which the most important are the conditions that must be fulfilled for a lawful marriage to be created and the impediments that prevent a lawful marriage. The primary condition for concluding a lawful marriage is that the spouses have ius conubii. This means that they are Roman citizens, or Latins, and that they do not have a prohibition to conclude a marriage. In addition, age is a condition: they must not be minors. The age threshold for girls is twelve years, and for males fourteen (Inst. Just. 1.10; Cod. Just. 5.4.24). If they are younger than the prescribed age, the marriage is considered invalid, even if the woman has been brought into the husband’s home. The last two conditions for concluding marriage are: that there is marital inclination (affectio maritalis) and that the marriage is concluded in a form prescribed by law.

It is evident that even in the time of Justinian, marriages were not registered by a state official. The couple could make a marriage contract, if they wished, in which they provide an inventory of the dowry and the common property (instrumenta dotalia), as well as the obligations they assume by entering into the marriage. Hence the authorities could not always have insight into who is marrying whom, especially in the provinces among the local population. If marriage is not constituted by registration before an official, then what is it that holds the marriage? According to Ulpian (Digesta, 24.1.32.13) it is the marital inclination (affectio maritalis) and the act of leading the woman (uxorem ducere, deductio in domum) into the man’s home, which is the place of residence of the married couple. The very fact that she lives in his home and wishes to live in his home is the basis for declaring a marriage, and this is the simplest way of concluding a marriage, called (1) usus (“use, cohabitation”). There are two further forms of concluding a lawful marriage, which imply certain ceremonies: (2) coemptio (“purchase in form only”); (3) confarreatio (the most ancient and most prestigious form of Roman religious wedding in the presence of the pontifex maximus, at which the couple ate a piece of a spelt cake, farreus panis).

2.3. Marriage Under the Husband’s Power and Marriage Without the Husband’s Power

Within marriage, the woman may have a different status depending on whether she accepts or does not accept the husband’s power, that is, whether she enters the new agnatic family or not. If the woman comes under the husband’s power (manus), the marriage is called matrimonium cum manu; if she does not accept the husband’s power, but (a) remains under her father’s power (patria potestas) or (b) is emancipated (sui iuris) under a tutor’s guardianship (tutella), then the marriage is called matrimonium sine manu.

In the first case, when the woman enters into marriage cum manu, she becomes part of her husband’s agnatic familia and becomes an agnatic relative with him. The future spouses, or their representatives, made an agreement called conventio in manum, according to which the woman enters the family of her husband and acquires the legal position of a daughter (filiae familias loco), which means that she is not on the same level with him but one generation below him. She fell under his power (manus), or under the power of his pater familias, as a citizen alieni iuris (under another’s power). Her position was similar to that of adopted children, who were connected with the familia, but not as closely as natural children. As a result of such a marriage, the woman—like her children—remained under her husband’s power until his death. She could not own property and could not divorce him, although he could divorce her. If he died before her, she became one of his heirs (sui heredes). If he was pater familias at the time of death, she became sui iuris after his death, but still within his patriline.

Marriage sine manu generally created a situation in which male power over the woman (patria potestas—paternal power, manus—the husband’s power, or tutella—the tutor’s power) was divided among several persons who were not related to each other: her father or tutor (if emancipated), her husband, and perhaps her husband’s father (if the husband is alieni iuris). In order for her to retain independence from her husband, it was necessary to make use of the rule usurpatio/absentia trinoctium, according to which she was obliged to be absent from her home for three nights in a row every year (Lex XII Tab. VI. 4 = Gai. Inst. I. 111):

“Hence it was provided by the Twelve Tables that any woman wishing not to come under her husband’s manus in this way should stay away from him for three nights in each year and thus interrupt the usus of each year.” (trans. de Zulueta 1958, 35)

(itaque lege duodecim tabularum cautum est ut, si qua nollet eo modo in manunt mariti conuenire, ea quotannis trinoctio abesset atque eo modo usum cuiusque anni interrumperet.)

2.4. Legal Impediments to Concluding Marriage

The impediments to concluding a marriage are numerous. First, if the conditions for marriage listed above are not met, then there impedes concluding a marriage. Further, we can single out those prescribed by law: the existence of another marriage, as noted above; mental illness of one of the spouses (if acquired during marriage, then it is not a ground for divorce: “Madness constitutes an impediment to concluding a marriage, because consent is required; but as soon as [the marriage] is properly concluded, [madness] is no impediment.” Digesta 23.2.16); blood kinship.

According to the jurist Gaius (Gai. Inst. 1.59), marriage between parent and child, grandfather and granddaughter, grandmother and grandson, i.e., among all those who are in kinship in the direct line, is considered impious and incestuous (nefarias et incestas nuptias). In the collateral line, relatives were not permitted to marry in the earliest times up to the sixth degree, and in classical law up to the fourth degree. The same applies to kinship by adoption. Indeed, Gaius further confirms (Gai. Inst. 1.61; Digesta 23.2.17.) that marriage between brother and sister is considered incestuous, regardless of whether they are full, half, or adopted. As for marriage between a legitimate and an adopted child, he says it can be effected only if one of them is emancipated. Then there is no longer a legal impediment to marriage (nihil impedimento erit nuptiis). But marriage between an adopted child (descendant) and an adoptive parent (ascendant), or with a brother/sister of the ascendant, is considered incestuous, and therefore prohibited, even after the emancipation of the adopted child (Digesta 23.2.17.2). If such a marriage is nevertheless concluded, it was considered invalid, and children born of this marriage are considered to have no father (sine patre). This indicates that the children are deprived of the right to be heirs, and that is the punishment for this type of transgression.

Besides these impediments from the old law, in classical law an impediment is also a marriage between tutor and ward, which represents an abuse of position; and by the Augustan laws (Lex Iulia de maritandis ordinibus and Lex Papia Poppaea) the senatorial order was forbidden to marry freedwomen or persons engaged in dishonorable professions, and this is given due attention in the Digesta (D. 23.2).

2.5. Dissolution of the Marital Union

The dissolution of the marital union, according to Paul, may occur due to divorce, death, captivity, or another form of servitude of one of the spouses: “Dirimitur matrimonium divortio, morte, captivitate vel alia contingente servitute utrius eorum.” (Digesta 24.2.1).

Servitude was a reason for the dissolution of the marital union, because thereby the status libertatis of one of the spouses was lost, and this automatically meant the loss of ius conubii, which constituted a legal impediment to the continuation of the marriage. But if the husband or the wife returned from captivity and regained his or her former status civitatis, then it depended upon their will whether the marriage would continue. Regardless of whether there are possibilities for the captive’s return, or not, the jurists recommend to the wives of captured men not to rush into another marriage, so as not to incur the consequences of divorce, which mainly concern their property:

“The wives of people who fall into enemy hands can still be considered married women only in that other men cannot marry them hastily. Generally, as long as it is certain that a husband who is in captivity is still alive, his wife does not have the right to contract another marriage, unless she herself has given some ground for repudiation. But if it is not certain whether the husband in captivity is alive or has died, then if five years have passed since his capture, his wife has the right to marry again so that the first marriage will be held to have been dissolved with the consent of the parties, and each of the parties will have their rights withdrawn. The same rule applies where a husband stays at home and his wife is captured.” (trans. Watson vol. 2, 1985, 257)

“Uxores eorum, qui in hostium potestate peruenerunt, possunt uideri nuptarum locum retinere eo solo, quod alii temere nubere non possunt. et generaliter definiendum est, donec certum est maritum uiuere in captiuitate constitutum, nullam habere licentiam uxores eorum migrare ad aliud matrimonium, nisi mallent ipsae mulieres causam repudii praestare. sin autem in incerto est, an uiuus apud hostes teneatur uel morte praeuentus, tunc, si quinquennium a tempore captiuitatis excesserit, licentiam habet mulier ad alias migrare nuptias, ita tamen, ut bona gratia dissolutum uideatur pristinum matrimonium et unusquisque suum ius habeat imminutum: eodem iure et in marito in ciuitate degente et uxore captiua obseruando.” (Digesta 24.2.6)

The state, just as it did not register the conclusion of a marriage, likewise did not register divorces. Hence, evidence for the practice of divorce exists only through discovered papyri with documents of divorce, or the censorial lists, which mainly come from Egypt or the Near East—sources from which no general rule for the entire Empire can be derived. According to the jurists, for the divorce to be legally effective, the man and the woman needed to have witnesses that the marriage was dissolved. Two terms are used for the dissolution of a marriage, which sometimes have the same meaning: divortium and repudium. Classical jurists also speak about the difference between divortium and repudium, and they are likewise not unanimous about their distinction. According to Modestinus (Digesta 50.16.101.1.1): “‘Divortium’ is said to occur between husband and wife, while repudium appears to be sent with respect to a betrothal.” (“'Divortium' inter virum et uxorem fieri dicitur, 'repudium' vero sponsae remitti videtur.”)

The jurist Paul (Digesta 50.16.191) provides the following distinction:

“Between divortium and repudium this is the difference: repudium can be made regarding a marriage that is to be concluded in the future, whereas for a betrothal it is not correct to say that a ‘divorce’ has occurred, since the word divortium is derived from those who go in different directions when they part.”

“Inter 'diuortium' et 'repudium' hoc interest, quod repudiari etiam futurum matrimonium potest, non recte autem sponsa diuortisse dicitur, quod diuortium ex eo dictum est, quod in diuersas partes eunt qui discedunt.”

Today it is generally accepted that divortium refers to a bilateral decision to dissolve a marriage, for which no legal causes (iusta causa) are required, whereas repudium, which as a term is characteristic also for betrothal, means a unilateral decision to dissolve the marriage, and thus
can be translated as “repudiation,” although sometimes it has the meaning of “expulsion.” One spouse decides to leave the union, regardless of which of them leaves the common home. The term repudium is rendered as “unilateral divorce.” In the Law of the Twelve Tables (IV.3 = Cicero, Phil. II, 69) unilateral divorce is mentioned, i.e., the expulsion of the woman from the husband’s house: Illam [...] suas res sibi habere iussit, ex XII Tabulis, claves ademit exegit. (“He has ordered that (woman) of his to have her own property to herself, in accordance with the Twelve Tables, he has taken [her] keys, he has expelled [her]”). Just as adulterium, so repudium is a coinage: re + pudet + -ium (Oxford Latin Dictionary). The prefix re- bears the meaning of backward or contrary movement, withdrawal, separation, or an action that is repeated. The verb pudeo means “to be ashamed” or “to make someone ashamed.” From this verb is also derived the agent noun pudor, -oris = “shame,” but also “modesty,” “sense of honour,” since the one who is ashamed shows modesty. These two semantic fields are connected in the noun repudium to denote a rejection of shame. Such a meaning also accrues to the verb repudio: “I reject, do not accept, repudiate, turn out, expel (uxorem), I cast off shame from myself.” In fact, repudium, an act that could be done only by the husband in the time of the Republic, is connected with casting off shame, which has its basis in sexual relations. This is also indicated by the euphemistic designation of the sexual organs, which among Greeks and Romans are called the “shameful parts” (pudenda, τὰ αἰδοῖα). Yet the spouse cannot effect this repudiation of the marital union without a legal cause, since otherwise he or she will be punished in property and by loss of the right to marry.

There has been a significant variation in the legal causes that allow the divorce to pass lege artis throughout Roman history. The Roman emperors of the Christian period reduced the legal causes for unilateral divorce. This did not mean that spouses could not divorce, but rather they were required to pay penalties and forfeit certain marriage rights. For instance, a woman could only divorce her husband without consequence if she could prove that he had committed one of three specific crimes: murder, poisoning, or grave desecration, as outlined by Emperor Constantine in 331. Similarly, a husband could divorce his wife without her consent if he could prove that she was moecha (“adulteress”), medicamentaria (“poisoner”), conciliatrix (“procuress”). If a woman initiated a unilateral divorce without legal cause, she would lose her dowry and be banished to an island with similar sanctions in place for men. These legal causes varied depending on the emperor in power, with the strictest regulations seen during Justinian’s reign, where unilateral divorce was completely prohibited. Bilateral divorce was only allowed if both spouses chose to live in a monastery, as issued in Novella Justiniani 134.11. Recognising the harshness of this provision, Emperor Justin II, who succeeded Justinian, promptly abolished it upon taking the throne (J. Nov. 140).

2.6. Return of the Dowry

After the divorce, the husband and wife did not litigate over custody of the children, as the law dictates that they should be with the father unless a special agreement allows the children to be raised by the mother. Instead, they litigated over the restitution of the dowry. In a lawful marriage, the husband and wife did not have joint property. Each kept track of their own property owned before the marriage, as well as any gains made during the marriage. Even within the same household, each object belonged to either the husband or the wife. Therefore, the husband was not obligated to support the wife, and vice versa, although they were legally required to care for their ancestors and descendants. For a woman to support herself using her own property, she had to bring a dowry (dos) into the marriage, which was then in the husband's possession. A verbal contract called dotis dictio/promissio was necessary to assure the future bridegroom or his father that the bride would bring a dowry into the new family. The purpose of the dowry was to cover expenses during the marriage, household upkeep, and child support. However, the woman could not independently spend the dowry, except in extraordinary cases listed in Digesta (D. 24.3). In Justinian's time, the woman owned the dowry, while the husband acted as usufructuarius, gathering the fruits.

But if the woman dies, or the marriage is dissolved, Ulpian (D. 24.3.2) says “the dowry ought to be returned to the woman.” For that purpose, in Justinian’s time, a real action (actio dotis) was already available by which the woman—either herself or jointly with her father (if she is unemancipated)—could claim her dowry in court. Of course, she does not receive the entire property back, but leaves a share to her husband, to cover the necessary expenses incurred during the marriage, as well as for her children. The remainder she shared with her father if she was not emancipated.

Not all of the dowry was returned, and not every type of dowry was returned. Jurists strictly divided the dowry into (1) dos profecticia (the profectitious dowry, that which comes from the girl’s father or from the pater familias of the family to which the girl belongs, Digesta, D. 23.3.5) and (2) dos adventicia (the adventitious dowry, that which is given by anyone else or by the woman herself). After the dissolution of marriage, the profectitious dowry is returned to the father and/or to the woman, if she is emancipated, whereas the adventitious dowry remains with the husband, unless otherwise stipulated by stipulatio. The period for the return is likewise guaranteed by law, so that the woman is not left without means of subsistence for a long time.

The Digesta provide many rules for the return of the dowry—how much of the dowry is returned and to whom it is returned in different hypothetical situations—but what emerges as a conclusion is that through the procedure of the return of the dowry the protection of the woman was made possible, so that she would not be left with nothing when the marriage was dissolved. As noted earlier, divorce should not be without iusta causa; therefore, if a woman decides to leave her husband without observing a legal cause, then she is left without her dowry, i.e., she has no right to an action for the dowry, since divorce was not an act encouraged at any cost.

In conclusion, women gained more independence in marriage during the Empire compared to earlier periods. What is set out in the legal theory is in a certain way also corroborated by excavations from Egypt, where papyri with diverse contents have been found, among them numerous legal documents. These documents show that it was customary, from the beginning of the Empire (probably a custom adopted from the Hellenized Egyptian population), to make marriage contracts—of which a copy was kept in the state archive—by which relations and conditions for divorce are settled. In them, among other things, it is stated how large a dowry the woman brings into the marriage and how, when, and to whom the dowry should be returned. Naturally, at the end of the contract, it is necessary for the husband to sign that he agrees, and based on this contract, the division was made upon divorce. For these reasons, documents for a bilateral divorce are far fewer, since they are not necessary. When they do exist, the causes for divorce are not listed, but the husband and wife grant each other permission to enter another marriage and confirm that the dowry has been returned to the woman.

Daniela Tosheva