In general, the children of a legal marriage followed the status possessed by their father at the time of their conception.
Children who were born out of civil wedlock followed the status of the mother at the time of conception.
A child born from a marriage between a peregrine and a Roman citizen followed the status possessed by the father at its conception, if the peregrine possessed conubium. If the peregrine lacked conubium, the child followed the mother's status. A Lex Minicia (from before 90 B.C.) ruled that such a child would be a peregrine, no matter what the status of its mother. In this matter Latins were considered as peregrines; Junian Latins.
- Illegitimate children
An illegitimate child (spurius) was born sui iuris and had a cognatic relationship with its mother. As i the case of legitimate children, illegitimate children and their mother had a reciprocal duty of support. They could succeed to their mother on intestacy.
- Legitimation
Children born in concubinate, known as liberi naturales, could be legitimated in the following ways:
+ By Imperial Rescript
Justinian allowed this if there were no legitimate children and marriage had become impossible (because, for example, the mother had died). Legitimatio per rescriptum principis was also possible where a father, in his will, desired that his children should become legitimate; in this case the children had a right to apply for the rescript.
+ By subsequent marriage (legitimatio per subsequens matrimonium)
Justinian allowed this subject to the child's consent and the existence of a correctly formulated marriage contract, or the existence of a settlement of dos. Additionally, the child's parents had to prove that they were capable of a legal marriage at the time of the child's conception.
+ By offering to a Municipal Council (legitimatio per oblationem curiae)
Where a natural son was provided with property by the father to enable him to become a member of a municipal council (decurio), or where a natural daughter was provided with property so as to marry a decurio, the son and daughter were legitimated. This method of legitimation, introduced by Theodosius and Valentinian, originated in attempts to fill an expensive and burdensome public office.
Note: Justinian allowed to liberi naturales and their mother a right of succession in one-sixth of the property on the father's intestacy, but only where neither a wife nor legitimate children had a right of succession. A father was allowed to leave property by will to his concubine and her children.
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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 (VIII): Matrimonial property
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Source:
Roman Law, L. B. Curzon, pages 46 - 48.
