Marriage under Roman Law. A precedent to the Institution of Marriage in our time.

Marriage under Roman Law. A precedent to the Institution of Marriage in our time.

After a break, I would like to continue a brief analysis of the Roman Institution of Matrimony. Let’s talk a little about the Juridical Nature, the Requisites, Consent, Status Familiae, Ritual, and Proof of Matrimony:

In the original interpretation of Roman law, matrimony is purely contractual in nature, since the expressed will was a “Conditio sine Quanon”, the will to be together was initially the generator of the link between the man and woman. Later it has been concluded that the condition exists “De Facto” and independently of its origin, regardless of the contractual characteristics of it and will subsists as long as the consent of both man and woman persists. In other words matrimony in Roman Law was the recognition of a status between a man and a woman, and was not generated by the institution, but recognized by it. Nevertheless, as said before, according to Ulpianum, the concubinatum was not equal to matrimony, since the will to share a life and affection together was essential. There were of course several conditions or requisites for this condition of matrimony to exist.

Ius Connubii: Which is the legal capacity to be married (engaged in “Iusta Nuptia”). Only people with the legal capacity to express their will and consent were to be recognized as married. This will exclude non citizens (“status civitatis” required), non pubers, pilgrims (passing by) slaves and barbarians (poor Arnold, wouldn’t have been able to marry a Kennedy). It is clear that no same sex relations were legally recognized by the Roman Institution of Matrimony.

The requisite of puberty is crucial, since the goal of marriage then was procreation and therefore the spouses to be, had to be able to conceive and/or procreate, to form a family. For example, the castrated were not capable of matrimony. Castration was a practice brought from the Orient and usually practiced with the slaves to care for the women in the house. If you didn’t have the organs, you didn’t qualify.

There were then impediments to matrimony, some of absolute and others of relative nature. There were cases in which matrimony was not possible and others in which it wasn’t possible with certain people. Absolutely you couldn’t marry if you were a relative ascendant or descendant (direct blood line), or a non puber (not reached puberty), castrated, and married to somebody else or a widow before a year of mourning. You couldn’t marry also if you were deemed mentally ill (“mente captus”), or if you were subject to a tutor, curator and not legally free to express your will.

Relatively you couldn’t marry if you were a relative of certain sort or adopted (between adopted parent and son or daughter), between stepson and stepdaughter with a widowed or divorced stepparent. Religious diversity was never an impediment to matrimony in the Roman Empire; it was different social status until the “Lex Canuleia” (445 aC). The kidnapper and the adulterer couldn’t marry either to the object of their actions; as well as the tutor and the pupil.

Affectio maritalis: In regards to expressing consent the marriage had to be real and not simulated, there had to be “affectio maritalis” (affection between the spouses); not subject to error in regards to the identity of the contracting parties. You couldn’t be subject to “patria potestas”, verbis gratia, you couldn’t be an “alieni iuris” (lacking of legal will) or a “sui juris” (subject to the will of other). If so, the consent of the one holding the “patria potestas” (authority of the father) could be expressed a posteriori, correcting any void in the legality of the will of one or both of the spouses, by confirming or ratifying the act.

If the will of the “pater familias” couldn’t be expressed for reason of missing, or prison, or war, or other; the consent had to be expressed by the magistrate after hearing from the curator. If consent was denied by the “pater familias”, in the case of a woman, the magistrate could authorize it. In the case of a man the prohibition held since no one could be forced to have an inheritor. Nevertheless, the “pater familias” couldn’t impose matrimony to a “filusfamiliae”, since consent of the contracting parties was essential.

The rites were not essential to the Roman matrimony since the expression of consent was commonly sufficient. Nevertheless and over the years, ceremonies accompanied the matrimony were know as “Deductio in Domun Maritti”, or taking the woman to the home of the man in a procession with friends and family.

There were effects in regards to the condition of the woman, who could be married “cum manu” or “sine manu”, subject to the marital power of the husband or not; and in regard to both there was the “societas vitae”, or life community.

Regardless of the lack of formalities to the matrimony in Roman Law, the precedent is that is always between a man and a woman. When other forms of relationships are been tried to symbolize otherwise it is not historically accurate. The adelphopoiesis is clearly Greek in nature and related to a spiritual brotherhood that has nothing to do with physical contact or relationship. The bible has wrongfully been politically corrected also in regards to this expression of brotherhood as in early Greek versions it refers to “brethren”, used by Jesus himself, referring to those who share the same father, his father, God. Known in Latin as “Ordo ad fratres faciendum”, has never ever had a sexual connotation or recognition of same sex union.

Times have obviously changed and a situation that has consequences has to have a legal frame and those consequences recognized and regulated. Society has to give room for evolution into an institution that might be inspired in matrimony, but is essentially different to what has been traditionally, historically and legally the norm. Let’s make a norm that satisfies the need without changing the institution.

Regards,

Francis W. Butters