Marriage was an integral part of traditional ancient roman
way of life, thus it is no surprise that laws pertaining to the subject were
constantly changing and progressing, particularly from the classical era to
that of late antiquity. Most scholarly sources available to us today are
focused on marriage law in the classical era, and little is said about the development
that marriage law underwent throughout late antiquity. Our main source of
information when studying such a subject is the Theodesian code; a compilation
of laws ordered by emperor Theodosius 2 which compiles all the laws enacted by
roman emperors starting from Constantine 1, up until Theodosius himself.  Such a code allows us to gain an insight into
the changes that took place in the law throughout ancient roman times, thus
giving us the ability to compare and contrast accordingly. As we will come to
find out, there are a number of factors which had an impact on the changes that
took 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 the
introduction of Christianity in the roman empire.

 

 It is important to
note that when studying roman marriage law, most of the records at our disposal
deal 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 amongst
the lower classes, such as for example marriage relating the slaves, soldiers
and clerics, it is difficult to determine the extent to which these ancient
roman customs were enforced amongst the lower classes of society. The essence
of roman law as it existed traditionally boils down to a simple private
agreement between the two parties to be married, irrespective of the betrothal,
ceremonies or festivities which which precede the marriage procedure. This will
be explored in further detail in the section relating to marriage consent. In
order for a marriage to be declared valid in ancient roman times, otherwise
known as iustae Nuptiae, there was a criteria which needed to be satisfied.

Note that the requirements which constituted a valid marriage frequently
changed over time depending on the emperor in power.

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Firstly, individuals to be married couldn’t be too closely
related to one another. For most of the ancient roman period, incest was a
punishable crime, and thus marriages which took place between individuals who
were second cousins or closer relatives were prohibited from marrying one
another. There was a brief concession to this law during the reign of emperor
Claudius, who enacted an exception to the law which permitted the marriage
between an uncle and his niece; a law known to have been introduced in order to
allow him to marry his brother’s daughter. This law was later reversed by
emperors Constantantius and Constans, who went as far as to execute anyone who
breached this law. The pair took it a step further by nulling marriage which
took place between a man and his brother’s former wife. Despite all the laws
prohibiting incestuous marriage and relationships between close family members,
one cannot exclude the fact that incestuous relationships were common at the
time, and were sought especially amongst the upper classes. This is perfectly
exemplified by an episode which took place in which the emperor Honorius sought
to marry the sister of his first wife as his second wife, but was forced to
abandon his plans due to public scrutiny. 
It has been suggested that the possible motif for incest amongst the
elite of society was to maintain wealth amongst the came closed circle of
people. Despite not being considered incest, the law of Constantanius also
prohibited the marriage between a woman who’s father had passed away, and her
legal guardian. The purpose of this law was to prevent abuse from taking place
on behalf of the legal guardian, as the absence of such a law created an
environment which facilitated the manipulation of the women’s wealth by her
legal guardian in an attempt to bring it under his own family’s control.

 

Marriage was also prohibited between persons coming from
widely differing social classes. Scholars believe this was primarily intended
in order to maintain the division that existed between the patrician and plebeian
classes. Under roman law, it was clearly stated that a valid marriage could
only be ordained by individuals who were in possession of ‘conubium.’ Unions of
any other kind were considered inferior in the eyes of the law. If the husband
lacked conubium, the marriage was classified as ‘matrimonium non iustum’,
whilst on the other hand if the wife or both parties lacked conubium, the union
was 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 in
order to restrict the transfer of property or marriage payments amongst
differing social classes.

 

In order for marriage to be valid, both members had to first
be old enough to consummate the marriage. As can be seen from the typical ages
for one to get married during roman times, there is no doubt as to whether the
male figure in the relationship was old enough for consummation, however the
same cannot be said for the female as available sources mostly point at the
typical age amongst men to be in their 50’s, whilst women were many a time
still in their early teens. However one must note that the typical age required
for marriage varied from one district to another, thus it is hard to establish
the minimum age required for one to undergo the consummation ceremony. Despite
this, betrothal was permitted for girls of a younger age, however the marriage
however the marriage wasn’t considered complete until consummation. Thus, for
reasons which will be disclosed eventually, it wasn’t in a man’s favour to be
in a relationship who was far from the age required for consummation.

 

Last but not least, consent was necessary in order for a
marriage to go through. As will be explored, the element of consent was
considered to be an integral part of roman marriage, and was given a
significant amount of importance throughout the ancient roman law. We will also
see that the perception of consent throughout the years of the empire shifted
from initially being perceive as the father’s consent to the marriage of his
children, while later on started to be looked upon as the consent of the
individuals themselves.  As already
mentioned briefly, consent could have referred to the blessing of a direct male
ancestor in cases where individuals to be married were still living under the
observation of their paterfamilias. If this was not the case, the procedure
that conferred depended on the gender. While the male was given the luxury of
choosing how own wife, women still required the consent of their legal
guardian. One must note that when we speak about consent, it was required by
the 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 ‘affectio
maritalis.’ The jurist Ulpian claimed that if the element of affectio maritalis
was missing from ones marriage, he described the situation as mere
cohabitation. This goes to show us how highly the element of consent was viewed
in roman marriage, not just initial consent, but lifelong. Ceremony and wedding
functions acted as public displays of the affectio maritalis that existed
between a couple. Knowledge of the union that existed between the two by the
couples 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 of
laws enacted by emperor Majoran, which emphasise and stressed upon the need for
a women’s consent in order for the marriage to go through. Any attempts to
coerce the woman into marriage by any means including physical violence were
condemned, and the marriage was forbidden irrespective of the consent that may
already have been given by her parents (C.Th.3.10.1,3.6.1, and 3.11.1). Despite
the change in law supposedly bestowing freedom upon women in their choice of
marriage partners, it is unclear as to how far these laws were actually
implemented. One law clearly requires the consent of her paterfamilias, this
clashing with her freedom to pick a partner of her choice. To add onto this, if
a women wished to re marry and was younger than the age of 25, she still
required the consent of her father and was obliged to abide by his choice in
partner unless she found faults in his based on reasonable grounds.

 

Marriage payments were of vital importance throughout ancient
roman times, more commonly referred to as the dowry. Marriage payments were not
only seen as symbols of the affectio maritalis, but also of the joining of the
two families that later transcended in inheritance. The necessity of the dowry remained
intact, so much so that a law of Julian pronounced the giving of a dowry in
order for a marriage to be valid (C.Th 3.13.2 in 363). The need for a dowry was
only rescinded for a brief period of time during the rein of Theodosius 2 and
Valentinian 3 in 42, in which it was declared that marriage was still
considered valid even in absence of a dowry. However this was short lived as
the law was reversed by emperor Majoran based on its absurdity, adding that
those married without a dowry “must so be branded with stigma.”

 

Traditionally, it was ideally the case that women marry once
throughout their life time, and remain devoted to their partner forever. This
bestowed upon them the title of ‘univerae.’ However, this could not be the case
during the reign of Augustus, who incentivised re marriage after the death or
divorce of a spouse by imposing penalties which came in the form of inheritance
restrictions upon those who opted for celibacy. The maximum period one was
allowed to remain single before penalties were imposed was two years, thus as
previously mentioned, it was due to this that it wasn’t in the interest of men to
be in relationships with girls far below the required age for consummation, as
it could be the case that by the time they were old enough to consummate the
marriage, his two year allowance would be over thus rendering him the
penalties. This law was ended by Constantine 1 in a law that many viewed as
having been derived from his devotion to Christianity. This introduced a
culture in which people were opting for a celibate lifestyle, as Christianity started
to gain momentum. The fourth and fifth centuries saw an effort being made on
behalf of the emperors, to try and return society to the traditional idea of
lifelong marriage. This is not to say that divorce and re marriage didn’t
exist, however restrictions were placed on one’s ability to re marry. For
example 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 those
who divorced their husbands for frivolous reasons were denied their right to re
marry, and faced serious consequences for attempting to do so. This was also applicable
to men, so much so that they faced the loss of their new wife’s dowry to their
former wife. However one must point out that the law was less harsh on men, requiring
them 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 tempus
lugendi was over were condemned. In the words of Theodosius himself, such a
woman “shall be branded with the marks of disgrace and deprived of both the
dignity and the rights of a person of honourable and noble status.” This goes
on to mean that she lost her rights to any gifts, including betrothal gifts
received from her previous husband (C.Th 3.8.1 in 381.)

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