- Gifts between spouses
These were prohibited, not only between the spouses, but among all members of the two families. Where such a gift was made, the transaction was void and the gift remained in the ownership of the donor. This prohibition did not apply:
. In the case of a present involving moderate expense only.
. In the case of customary gifts. A senatusconsultum in the time of Caracalla enacted that such a gift should be revocable during the marriage, or if the donee died before the donor, or if the marriage were dissolved by diverce.
. In the case of a gift for maintenance.
. In the case of gifts made in contemplation of divorce or death, to take effect in those events.
Note: Where there was a question as to the source of particular property possessed by the wife, the praesumptio a presumption (in absence of proof to the contrary) that it had been given to her by her husband.
- Donatio ante Nuptias (Gift before marriage)
This took the form of a settlement on the wife made by the husband and intended as his share of the expenses of the marriage. So that the prohibition above might not take effect, the donatio was made before the marriage. On the husband's death, or in the case of divorce without fault on the wife's part, the donatio passed to her. If there were children, they received the ownership of the donatio and the wife received a usufruct in it.
- Donatio propter Nuptias (Gift on account of marriage)
Under Justinian a settlement might be made before or after the marriage. There was rarely a transfer of property; the husband merely contracted to make a gift.
- Dos
This was a gift of anything possessing monetary value made (often by a written document –instrumentum dotale) by the wife, or someone on her behalf, to the matrimonial expenses.
+ Methods of constituting a dos
A dos could be constituted by: Dotis Promissio –a promise to give dos); Dotis Dictio –a verbal contract to give dos; Dotis Datio –a conveyance of dos so that it was vested in the husband.
+ Types of dos
Dos profecticia was given by the wife's father, or her paterfamilias; Dos adventicia was given by any other person; dos recepticia was given with the stipulation that it was to be returned to the donor if and when the marriage was dissolved.
+ Onwership and devolution of dos
In pre-classical times dos vested absolutely in the husband and it did not revert, unless dos recepticia, when it reverted on agreed terms. During the classical period an actio ex stipulatu enabled the wife to reclaim dos in the event of divorce or her husband's death. The actio rei uxoriae allowed her to reclaim a portion of the dos, in the event of divorce, subject to the retention by the husband of one-sexth for each child and a further sixth if the wife had been the guilty party. On the wife's death, the donor could recover the dos where such a right had been stipulated, but the husband was allowed to retain one-fifth for each child. By juristic interpretation non-fungible objects were to be restored as soon as the marriage ended; fungible objects could be restored in three annual instalments. Where dotal property had been destroyed or damaged, the husband was liable for culpa (negligencia) or dolus (fraud, bad faith). Under Justinian the dos went to the wife on the death of her husband, or on divorce if she was not the guilty party. On her death (where she was not in power) the husband was given a usufruct in the dos, the ownership of which was vested in the children. In the event of divorce in which the wife was a guilty party, the husband kept the dos. Deductions were abolished. The actio dotis gave the wife a hypothec over the husband's property as security for the return of the dos. In A.D. 531, Justinian forbade the alienation or hypothecation of dotal immovables.
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- Marriage and Roman Law
+ Marriage (I): Its nature
+ Marriage (II): Sponsalia
+ Marriage (III): Its requisites
+ Marriage (IV): Laws of Augustus
+ Marriage (V): Forms of marriage
+ Marriage (VI): Concubinage
+ Marriage (VII): Dissolution of marriage
+ Marriage (IX): Children
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Source:
Roman Law, L. B. Curzon, pages 44 - 46.
