The law of the family and of succession at the time of the XII Tables (I): Marriage

The Roman family is purely patriarchal; if there ever was a time when the more primitive matrilinear system prevailed among any part of the population it has left no traces in the legal system, and Roman law is indeed characterised by the exceptionally great power which it allows to the father as head of the family. Originally, no doubt, this power was a general, rather vaguely conceived, supremacy, but by the time of the XII Tables it has crystallised and become differentiated, so that its name varies according to the persons over whom it is exercised. Over the wife and the sons' wives it is manus, over the children and slaves potestas, patria potestas in the former, dominica potestas in the latter case, while the bondsmen are said to be in mancipio.

- Marriage

The normal marriage at this period is accompanied by manus, i.e. the woman passes out of her father's family and comes under the despotic rule of her husband. It appears, however, that already by the time of the XII Tables this was not necessarily the case. Apart from the question of manus, marriage was to the Romans, as to the other peoples of antiquity, a de facto rather than a de jure matter, in the sense that two people were held to be married, not because they had gone though any particular ceremony, but because they in fact lived together as man and wife. This state of affairs begins ordinarily with the bringing of the bride to the house of the bridegroom (domum deductio), but no special legal significance attaches to this proceeding, except in so far as it is in fact the beginning of conjugal life. As we shall see, however, manus would in early times normally result in such conjugal life were continued for a period, and thus it may properly be said that marriage with manus was the rule at the time of the XII Tables. Manus may arise in any one of three ways, by confarreatio, coemtio, or usus.

Marriage (IX): Children

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.

Marriage (VIII): Matrimonial property

- 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.

Marriage (VII): Dissolution of marriage

- Death

Marriage was dissolved by death. In some cases a widow was not free to remarry immediately.

- Prolonged absence

This could have the same effect as death on marriage. The absence of news from a spouse for a considerable period, and circumstances from which death might be presumed could end a marriage.

Marriage (VI): Concubinage

- Concubinage: Its nature

Concubinage was the term applied to a permanent union between a man and woman which lacked affectio maritalis, i.e. the parties had no intention of marrying. Parties to this relationship had to be of marriageable age and had to be outside the prohibited relationships. It was forbidden for a man to have both a wife and a concubine, or two concubines; nor was he allowed to take another man's wife as his concubine.

- Children

A child born in concubinage was illegitimate. It was considered as a cognate of the mother and could be legitimated.

Marriage (V): Forms of marriage

- Manus Marriage (manus = hand)

+ Its nature

By this form of marriage, a woman was transferred from her family to the family of her husband and was said to be "in his hand" (in manum viri).

+ Manus Marriage: Its modes

. Confarreatio (far = spelt cake)

This ceremony was confined to the patricians. Spelt bread was used in a sacrificial ceremony to Jupiter, which took place in the presence of the flamen Dialis (a high priest) and ten witnesses.

. Coemptio

By a type of mancipation, power over the woman was transferred to the husband in return for a symbolic payment by the paterfamilias in the presence of five witnesses.

. Usus

No special ceremony was held and cohabitation for one year sufficed to bring the wife under the manus of her husband.

+ Manus Marriage: Its efects

The wife came under the potestas of the head of her husband's family. Her property passed to her husband and any property acquired thereafter also passed to him. A husband was responsible for his wife's obligations to the extent of her property. Having passed into the manus of her husband, her position approximated to that of his daughter; if her husband was in the power of his father she stood in the relationship of a grand-daughter to the father.

Note:

In the case of usus, a wife who stayed away from her husband for three consecutive nights (trinoctii absentia) did not pass under his manus, according to the law of the XII Tables.

These modes of marriage had disappeared by the end of the second century A.D.

- Free Marriage

+ Its nature

A valid marriage could be made without any ceremony where the essentials of marriage existed.

+ Free Marriage: Its modes

No specific mode was necessary.

+ Free Marriage: Its effects

The wife did not pass into the manus of her husband. In the absence of dos, she had no rights to maintenance by her husband, but her property remained her own.

Marriage (IV): Laws of Augustus

- Purpose of the Laws

Augustus introduced legislation designed to penalise the celibate and the childless. By Lex Julia de maritandis ordinibus (18 B.C.) and Lex Papia Poppaea (A.D. 9) penalties and restrictions were imposed on certain categories of persons.

- Their nature

Single men of 25-60, and women of 20-50, and divorced or widowed persons in those age groups, were placed under a duty to marry. Ius liberorum exempted a freeman with three legitimate children, and a freedman with four children. By this legislation an unmarried man could not take under a will, and married persons with no children could take only one half of any legacy left to them. A freeborn citizen was not allowed to marry an actress or a prostitute or a procuress.

Note: These laws were abolished gradually, or became obsolete, in the fourth and fifth centuries.

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- Marriage and Roman Law

+ Marriage (I): Its nature

+ Marriage (II): Sponsalia

+ Marriage (III): Its requisites

+ 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, page 42.

Marriage (III): Its requisites

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.

Marriage (II): Sponsalia

Sponsalia (betrothal) involved an agreement to marry. It usually took the form of a stipulation between the paterfamilias of the bride and the husband, or his paterfamilias.

- Sponsalia in ancient times

Sponsalia required a promise in the form of a stipulation by the parties mentioned above. Money, which could be recovered if the marriage did not take place, was also promised.

Marriage (I): Its nature

A Roman citizen was under a religious duty to marry and beget children in order that the religious rites of the family might be carried on.

The essence of the Roman marriage relationship (matrimonium) in its legal aspect lay in its social consequences. Custom, rather than law, dictated the nature of this relationship. At a later date, under the influence of Christian beliefs, the legal relationship between husband and wife assumed a greater importance.