Marriage was an integral part of traditional ancient romanway of life, thus it is no surprise that laws pertaining to the subject wereconstantly changing and progressing, particularly from the classical era tothat of late antiquity. Most scholarly sources available to us today arefocused on marriage law in the classical era, and little is said about the developmentthat marriage law underwent throughout late antiquity. Our main source ofinformation when studying such a subject is the Theodesian code; a compilationof laws ordered by emperor Theodosius 2 which compiles all the laws enacted byroman emperors starting from Constantine 1, up until Theodosius himself. Such a code allows us to gain an insight intothe changes that took place in the law throughout ancient roman times, thusgiving us the ability to compare and contrast accordingly.
As we will come tofind out, there are a number of factors which had an impact on the changes thattook place in marriage law such as those being environmental or economic,however it can be said that no other factors played as big of a role as theintroduction of Christianity in the roman empire. It is important tonote that when studying roman marriage law, most of the records at our disposaldeal with marriage law as it existed amongst the elite classes of society.Despite the fact that marriage law did touch upon the subject of marriage law amongstthe lower classes, such as for example marriage relating the slaves, soldiersand clerics, it is difficult to determine the extent to which these ancientroman customs were enforced amongst the lower classes of society.
The essenceof roman law as it existed traditionally boils down to a simple privateagreement between the two parties to be married, irrespective of the betrothal,ceremonies or festivities which which precede the marriage procedure. This willbe explored in further detail in the section relating to marriage consent. Inorder for a marriage to be declared valid in ancient roman times, otherwiseknown as iustae Nuptiae, there was a criteria which needed to be satisfied.
Note that the requirements which constituted a valid marriage frequentlychanged over time depending on the emperor in power. Firstly, individuals to be married couldn’t be too closelyrelated to one another. For most of the ancient roman period, incest was apunishable crime, and thus marriages which took place between individuals whowere second cousins or closer relatives were prohibited from marrying oneanother. There was a brief concession to this law during the reign of emperorClaudius, who enacted an exception to the law which permitted the marriagebetween an uncle and his niece; a law known to have been introduced in order toallow him to marry his brother’s daughter. This law was later reversed byemperors Constantantius and Constans, who went as far as to execute anyone whobreached this law. The pair took it a step further by nulling marriage whichtook place between a man and his brother’s former wife. Despite all the lawsprohibiting incestuous marriage and relationships between close family members,one cannot exclude the fact that incestuous relationships were common at thetime, and were sought especially amongst the upper classes.
This is perfectlyexemplified by an episode which took place in which the emperor Honorius soughtto marry the sister of his first wife as his second wife, but was forced toabandon his plans due to public scrutiny. It has been suggested that the possible motif for incest amongst theelite of society was to maintain wealth amongst the came closed circle ofpeople. Despite not being considered incest, the law of Constantanius alsoprohibited the marriage between a woman who’s father had passed away, and herlegal guardian. The purpose of this law was to prevent abuse from taking placeon behalf of the legal guardian, as the absence of such a law created anenvironment which facilitated the manipulation of the women’s wealth by herlegal guardian in an attempt to bring it under his own family’s control. Marriage was also prohibited between persons coming fromwidely differing social classes. Scholars believe this was primarily intendedin order to maintain the division that existed between the patrician and plebeianclasses. Under roman law, it was clearly stated that a valid marriage couldonly be ordained by individuals who were in possession of ‘conubium.
‘ Unions ofany other kind were considered inferior in the eyes of the law. If the husbandlacked conubium, the marriage was classified as ‘matrimonium non iustum’,whilst on the other hand if the wife or both parties lacked conubium, the unionwas known as contuberium, which translated to simply living with each other.The scope of declaring these unions inferior in the eyes of the law was inorder to restrict the transfer of property or marriage payments amongstdiffering social classes. In order for marriage to be valid, both members had to firstbe old enough to consummate the marriage. As can be seen from the typical agesfor one to get married during roman times, there is no doubt as to whether themale figure in the relationship was old enough for consummation, however thesame cannot be said for the female as available sources mostly point at thetypical age amongst men to be in their 50’s, whilst women were many a timestill in their early teens. However one must note that the typical age requiredfor marriage varied from one district to another, thus it is hard to establishthe minimum age required for one to undergo the consummation ceremony. Despitethis, betrothal was permitted for girls of a younger age, however the marriagehowever the marriage wasn’t considered complete until consummation.
Thus, forreasons which will be disclosed eventually, it wasn’t in a man’s favour to bein a relationship who was far from the age required for consummation. Last but not least, consent was necessary in order for amarriage to go through. As will be explored, the element of consent wasconsidered to be an integral part of roman marriage, and was given asignificant amount of importance throughout the ancient roman law. We will alsosee that the perception of consent throughout the years of the empire shiftedfrom initially being perceive as the father’s consent to the marriage of hischildren, while later on started to be looked upon as the consent of theindividuals themselves. As alreadymentioned briefly, consent could have referred to the blessing of a direct maleancestor in cases where individuals to be married were still living under theobservation of their paterfamilias. If this was not the case, the procedurethat conferred depended on the gender. While the male was given the luxury ofchoosing how own wife, women still required the consent of their legalguardian. One must note that when we speak about consent, it was required bythe individuals to be married that not only do they consent to a sexual union,but also to live as married persons; better described by the term ‘affectiomaritalis.
‘ The jurist Ulpian claimed that if the element of affectio maritaliswas missing from ones marriage, he described the situation as merecohabitation. This goes to show us how highly the element of consent was viewedin roman marriage, not just initial consent, but lifelong. Ceremony and weddingfunctions acted as public displays of the affectio maritalis that existedbetween a couple. Knowledge of the union that existed between the two by thecouples friends was considered as sufficient evidence of affectio maritalis(C.Th 3.
7.3.) The need for consent in roman marriage peaked in a series oflaws enacted by emperor Majoran, which emphasise and stressed upon the need fora women’s consent in order for the marriage to go through.
Any attempts tocoerce the woman into marriage by any means including physical violence werecondemned, and the marriage was forbidden irrespective of the consent that mayalready have been given by her parents (C.Th.3.10.1,3.6.
1, and 3.11.1). Despitethe change in law supposedly bestowing freedom upon women in their choice ofmarriage partners, it is unclear as to how far these laws were actuallyimplemented. One law clearly requires the consent of her paterfamilias, thisclashing with her freedom to pick a partner of her choice. To add onto this, ifa women wished to re marry and was younger than the age of 25, she stillrequired the consent of her father and was obliged to abide by his choice inpartner unless she found faults in his based on reasonable grounds. Marriage payments were of vital importance throughout ancientroman times, more commonly referred to as the dowry.
Marriage payments were notonly seen as symbols of the affectio maritalis, but also of the joining of thetwo families that later transcended in inheritance. The necessity of the dowry remainedintact, so much so that a law of Julian pronounced the giving of a dowry inorder for a marriage to be valid (C.Th 3.13.2 in 363). The need for a dowry wasonly rescinded for a brief period of time during the rein of Theodosius 2 andValentinian 3 in 42, in which it was declared that marriage was stillconsidered valid even in absence of a dowry.
However this was short lived asthe law was reversed by emperor Majoran based on its absurdity, adding thatthose married without a dowry “must so be branded with stigma.” Traditionally, it was ideally the case that women marry oncethroughout their life time, and remain devoted to their partner forever. Thisbestowed upon them the title of ‘univerae.’ However, this could not be the caseduring the reign of Augustus, who incentivised re marriage after the death ordivorce of a spouse by imposing penalties which came in the form of inheritancerestrictions upon those who opted for celibacy. The maximum period one wasallowed to remain single before penalties were imposed was two years, thus aspreviously mentioned, it was due to this that it wasn’t in the interest of men tobe in relationships with girls far below the required age for consummation, asit could be the case that by the time they were old enough to consummate themarriage, his two year allowance would be over thus rendering him thepenalties. This law was ended by Constantine 1 in a law that many viewed ashaving been derived from his devotion to Christianity. This introduced aculture in which people were opting for a celibate lifestyle, as Christianity startedto gain momentum. The fourth and fifth centuries saw an effort being made onbehalf of the emperors, to try and return society to the traditional idea oflifelong marriage.
This is not to say that divorce and re marriage didn’texist, however restrictions were placed on one’s ability to re marry. Forexample in the case of a women who divorced her husband even for valid reasons,she was requied to wait at least five years before re marrying, whilst thosewho divorced their husbands for frivolous reasons were denied their right to remarry, and faced serious consequences for attempting to do so. This was also applicableto men, so much so that they faced the loss of their new wife’s dowry to theirformer wife. However one must point out that the law was less harsh on men, requiringthem to only wait two years before re marriage in the case of improper divorce.During the period of Theodosius 1, women who re married before the tempuslugendi was over were condemned. In the words of Theodosius himself, such awoman “shall be branded with the marks of disgrace and deprived of both thedignity and the rights of a person of honourable and noble status.” This goeson to mean that she lost her rights to any gifts, including betrothal giftsreceived from her previous husband (C.Th 3.8.1 in 381.)