Recognition of a marriage depended upon certain factors including age, consent, conubium, intention, lack of disqualifications.
- Age
Husband and wife had to have reached the age of puberty –14 in the case of the male, 12 in the case of the female.
- Consent
The consent of the paterfamilias was essential where either party was in potestas. If the paterfamilias was insane, or in enemy captivity for three years, his consent was not required. The magistrate could order consent where it was withheld without good reason by a paterfamilias.
In later law the consent of the spouses became essential and where a spouse was below the age of 25 and not in potestas, parental assent was required.
- Conubium
Parties had to have the legal capacity for marrying. This meant:
They had to be Roman citizens, or peregrines with the right to contract a marriage considered as valid. In the early law, for example, a patrician-plebeian marriage was forbidden.
The had to be outside the prohibited degrees of relationship.
- Intention
Parties had to be an intention to marry (affectio maritalis). In some cases the symbolic act of bringing a wife to the husband's house (ductio in domum maritii) was held to establish evidence of affectio maritalis. At a later date the existence of a written contract of marriage had the same effect.
- Lack of Disqualifications
+ Blood relationship
Marriage between parties sharing a blood relationship was invalid. At no time might those with a lineal relationship marry. The law concerning collaterals prohibited marriage to those up to and within the sixth degree; in the classical period, however, a marriage up to the third degree was allowed, i. e. brother and sister, uncle and niece, aunt and nephew could not marry. In the second half of the fourth century first cousins were included in the prohibition, but this was repealed by Justinian.
+ Relationship by marriage
Step-parents and step-children, parents-in-law and children-in-law were disqualified from marriage. This was later extended to include the former spouse of a brother or sister.
+ Spiritual relationship (cognatio spiritualis)
Justinian prohibited the marriage of god-parents with god-children.
+ Existing marriage
An existing lawful marriage prevented either partner entering another marriage relationship. Bigamy was punished.
+ Widows
Where a widow married within ten months of the death of her husband (twelve months in post-classical law), the marriage was not invalidated, but it brought infamia upon her.
Note: Infamia involved a loss of one's civic reputation and standing. During the Republic an infamis was not allowed to hold office, nor was he allowed to act on behalf of another in litigation. Infamia censoria was a punishment by the Censors for unworthy behaviour and involved penal taxation and removal from the list of Senators. Infamia consularis led to a person's name being removed by the Censor from a list of those who could offer themselves for election to a public office. Infamia praetoria resulted from actions involving dishonourable dealings, e.g. the breaking of an oath, theft robbery, bankruptcy, usury.
+ Guardians and Wards
With some few exceptions guardians (and curators in the post-classical era) were not allowed to marry wards.
+ Other Disqualifications
Imperial decrees prohibited officers stationed in the provinces marrying women living in their provinces. During the early Empire soldiers on service were forbidden to marry. The insane were noy allowed to marry. The later law forbade priest and deacons marrying. Under Justinian, marriage was forbidden between an abductor and the person abducted, adulteress and paramour, Christian and Jew.
Note: A marriage between slaves (contubernium) possessed no legal validity.
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- Marriage and Roman Law
+ Marriage (I): Its nature
+ Marriage (II): Sponsalia
+ Marriage (IV): Laws of Augustus
+ Marriage (V): Forms of marriage
+ Marriage (VI): Concubinage
+ Marriage (VII): Dissolution of marriage
+ Marriage (VIII): Matrimonial property
+ Marriage (IX): Children
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Source:
Roman Law, L. B. Curzon, pages 40 - 41.
