Forms of marriage in Roman law. Concept, conditions of inclusion and types of Roman marriage. Three forms of marriage in Roman law

“Marriage is the union of husband and wife, the community of all life, the unity of divine and human law” (D.23.2.1). “The union of husband and wife based on living together” (Inst. 1.9.1). In this understanding of marriage, moral duty and cohabitation are predominant.

Roman law distinguished between two types of marriage:

Marriage with the authority of the husband (cum manu mariti);

Marriage without the power of the husband (sine manu).

The marriage of the “blue manu” had to be renewed annually. If a wife lived in her husband's house for a year, she automatically fell under the authority of her husband. Therefore, in order to avoid this, she had to spend at least three nights a year away from home; the prescription was thus interrupted. The types of marriage differed from each other both on formal grounds (the order of conclusion, dissolution, etc.) and in essence (the different scope of the wife’s legal capacity). Concubinage should be distinguished from a “blue manu” marriage. Concubinage in Ancient Rome was the permanent cohabitation of a man and a woman permitted by law. Unlike concubinage, marriage was concluded with the intention of starting a family and raising children.

2. Roman law provided for certain conditions for marriage. Some of these conditions were mandatory for all persons entering into marriage, other conditions applied only to certain groups of citizens

The conditions for marriage were:

Consent of the persons entering into marriage, as well as the consent of the groom's householder and the bride's householder, if they were dependent persons. If the landlord refused the marriage without reason, he could be forced through the magistrate;

Reaching marriageable age: for men - 14 years, and for women - 12 years;

Those entering into marriage must not be in another ongoing marriage;

Each of the spouses must have the right to enter into a legal marriage (therefore, for example, a Roman could not marry a foreigner). Later, when the rights of Roman citizenship were granted to foreigners, this condition disappeared. Marriages of freedmen with persons of the senatorial class were not allowed;

Persons entering into marriage should not have been related or related to each other. The obstacle was both agnatic and cognatic kinship.

Marriages between a guardian and a ward, between the ruler of a province and the women of that province, and between an adulterer and his accomplice were also prohibited.

3. Marriage was often preceded by betrothal. At first it was carried out by householders, then the bride and groom began to participate in it personally. In the classical era, marriage did not require any formalities - it was concluded by a simple agreement. By scrap. if there was a class difference, an agreement was drawn up.

There were three ways of getting married.

A solemn religious ritual with the participation of priests and K) witnesses, accompanied by sacrifice (in ancient times). This method of marriage was the privilege of the patricians and was called “conference”:

The imaginary purchase by a husband of his future wife from her father according to the rules established for the acquisition of valuable things ("bride mancipation"). This method of marriage is considered plebeian. This method is called “competition” and in the 1st century. AD turns into fiction and then disappears;

A marriage "sine manu", that is, without the power of the husband, was concluded without any formalities. This type of marriage developed from an ancient form of marriage called usus. It consisted of applying statutes of limitations to the area of marital relations.

4. The marriage ended with the death of a spouse, divorce or loss of freedom of one of the spouses. In the classical era, divorce was free and was allowed both by mutual consent of the spouses and by unilateral declaration of divorce. The dissolution of the marriage did not require judicial formalities, but the announcement of the divorce was necessary. This led to the fact that marriages very often began to break up. In this regard, during the era of the Empire, a number of laws were adopted aimed at preventing divorce and strengthening the family. Thus, a unilateral declaration of divorce was allowed only if it was justified (for example, the infidelity of the spouse, inability to family life, violence of the spouse, etc.). In addition, the law required men to be married between the ages of 25 and 60, and women between the ages of 20 and 50. Those who did not fulfill these requirements were deprived of the opportunity to be heirs under the will. A special tax was introduced on celibacy, etc.

More on topic 18. Marriage according to Roman law: concept, conditions for entry, procedure and methods and methods of conclusion and dissolution.:

26. Concept and types of Roman marriage. Conclusion and termination.
18. Marriage according to Roman law: concept, conditions of entry, procedure and methods and methods of conclusion and dissolution.
Church-state relations in the East and in the West. Church law as the first pan-European legal system.
1.3. Contract as a basis for the emergence of obligations in modern family law

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Marriage (matrimonium, nuptiаe): concept, conditions for marriage. Concubinate

“Marriage, or so-called matrimony, is the union of a man and a woman, presupposing a community of life.” This definition is enshrined in the Institutes of Justinian (1.9.1)*(16). The classical lawyer Modestine characterizes marriage as “the union of husband and wife, the unification of all life, communication in divine and human law” (D. 23.2.1) * (17).

From the above definitions it is clear that the Romans recognized monogamous marriage.

They distinguished between a real, legal Roman marriage, which only persons who had ius conubii could enter into. Only from such a marriage were children considered legitimate and subject to paternal authority and had the right of inheritance.

A union between persons who did not have ius conubii was an illegal marriage. It did not have the above legal consequences, although it was permitted by law.

The permanent union of a man and a woman without the mutual intention of marriage was called concubinage. This cohabitation took place in cases where marriage between certain categories of persons was impossible due to civil law.

The cohabitant (concubine) did not share the social status of her cohabitant. With the development of law, children from incubation receive certain rights.

Cohabitation between slaves, between slaves and freemen, did not matter at all.

In order for a marriage to be recognized as valid and legally binding, it had to meet certain conditions.

The Roman jurist Ulpian wrote: “A marriage is legal if there is a right to legal marriage between those who entered into it, if both the man and the woman have reached marriageable age, if their consent has been obtained as persons of their own right, or if they are subordinates.” persons, then the consent of their parents" (Ulpian, Er. 5.2)*(18).

The right to enter into legal marriage (ius conubii) originally belonged only to Roman citizens and latini veteres.

In different historical periods, laws introduced various restrictions on certain persons entering into legal marriage.

Thus, before the Law of Canuleus 445 BC. Marriages between patricians and plebeians were prohibited. Before the Law of Augustus 18 BC there was a ban on marriages between freedmen and freeborns.

An obstacle to marriage was direct kinship without restrictions and collateral kinship with various restrictions depending on changing legislation.

Marriages between senators and libertines, senators and actresses were prohibited; between guardian and ward; between the ruler of a province and a resident of that province; between persons, at least one of whom has taken a vow of chastity.

Marriages entered into in violation of established prohibitions were subject to annulment. Such marriages did not entail any legal consequences.

In postclassical law, the term ius conubii loses its meaning and ceases to be used.

The marriageable age was set at 12 years for women, and at 14 years for men.

In ancient times, consent to marriage was required from the landlord and the groom if he was persona sui iuris. Later, the consent of the subordinates of the bride and groom and their householders began to be required, and on the part of the groom, additionally, the consent of the person under whose paternal authority he could be in the event of the death of the paterfamilias.

Later, in a number of cases, children were given the right to marry without the consent of the paterfamilias.

The marriage was preceded by an engagement, which, according to Florentin’s definition, “is an offer and promise of a future marriage” (D. 23.1.1) * (19). It was accomplished through two stipulations. As Ulpian wrote: “Betrothal (sponsalia) is so called from the word promise (spondere); since the ancients had the custom of stipulating and, through a solemn promise, acquiring wives for themselves” (D. 23.1.2) * (20).

It was concluded between the paterfamilias of the bride and the groom or his paterfamilias. If the agreement was violated, the perpetrator could be punished for the damage caused.

During the post-classical period, the practice of paying a deposit or wedding deposit was introduced at the time of engagement.

According to Justinian's law, termination of an engagement without sufficient grounds entailed property liability for the perpetrator in the form of loss of the deposit or the obligation to return the deposit in double amount. Types of marriage. Forms of marriage

The oldest marriage, characteristic of the patriarchal system, was cum manu. The wife in this marriage fell completely under the authority of her husband or his householder, if the husband was a subject. This extended to both her person and her property. Legally, she becomes a daughter. She ceases to be an agnate of her former family and becomes an agnate of her husband and his family.

As Guy pointed out, “the transition to the power of a husband was accomplished in three ways: prescription, sacrificial bread and purchase” (Gai, 1.110)*(21).

“Through long-standing cohabitation, that woman entered into the power of her husband who remained continuously a wife for a whole year, becoming, as it were, the annual possession of her husband’s property...” (Gai, 1.111)*(22).

This method is called usus.

“In a confaraean manner, women enter into the power of their husband through a certain kind of sacred rite, which is performed by the bride and in which wheat bread is consumed - which is why this solemn rite of marriage is also called confarreatio” (Gai, 1.112) * (23). This ritual was performed in the presence of 10 witnesses and priests, and was accompanied by solemn words. This is a religious act. It was used among patricians.

“As for the “purchase”, on the basis of it, women enter into the power of their husband by mancipation, i.e. on the basis of a symbolic sale, in the presence of less than five witnesses from adult Roman citizens, as well as a weigher, the one under whose power buys the wife she passes over" (Gaius 1.113)*(24). This method is called coemptio. It arose among the plebeians, later becoming common.

The laws of the XII Tables indicate the existence of another marriage - sine manu, in which the wife was not under the authority of her husband. Table VI stipulates that “a woman who did not want her husband’s power to be established over her [by the fact of long-term cohabitation with her] had to leave her home for three nights annually and thus interrupt the year-long period of possession [of her].”*(25) This was to be repeated annually. At the same time, a sine manu marriage did not change the legal status of the wife. She maintained her previous marital status, continuing to be persona sui iuris if she had been such before marriage, or remaining subject to her father and legally alien to her children and husband. In a sine manu marriage, she remained an agnate of her former family. In property terms, the wife did not depend on her husband.

Having arisen later than the cum manu marriage, the sine manu marriage exists parallel to it for 200-300 years. In the 2nd half of the republic, sine manu marriage becomes predominant, and in the era of classical jurists - the only type of marriage.

In later times, it was concluded by a simple agreement between those entering into marriage, after which the wife moved into her husband’s house.

The difference between a sine manu marriage and a concubinage is that it was concluded with the intention of starting a family and raising children.

Before church weddings were introduced by Leo the Philosopher in Novella 89, it was sometimes difficult to prove that a marriage had taken place. The laws of Theodosius II and Valentinian III established that if persons of equal social status enter into cohabitation, then in case of doubt it is assumed that they entered into marriage. End of marriage

The grounds for ending a marriage included both objective and subjective reasons. The first included: the death of one of the spouses; imprisonment of one of the spouses (captivity, slavery), and only the marriage sine manu was considered terminated; deprivation of citizenship of one of the spouses; change in the marital status of one of the spouses, which makes marriage impossible. Divorce was considered subjective.

Freedom of divorce existed in Roman law throughout its history.

Divorce cum manu was possible only on the initiative of the husband (in cases of infidelity, drunkenness, infertility of the wife) in the opposite form to the one in which it was concluded: confarreatio - in the form of the diffareatio ritual; comptio - in the form of remansipatio.

Divorce sine manu was allowed by agreement of the parties and by the unilateral expression of the will of either spouse.

There was no specific form, but according to Augustan legislation, the dissolution of the marriage had to be declared in the presence of seven witnesses in the form of the delivery of a letter of divorce.

Over time, the reasons for divorce began to influence its consequences, which resulted in property losses.

Post-classical law introduced rules for divorce. There are two types of divorce: with adverse consequences and without them. The first type was divided into causeless unilateral termination and termination due to the fault of the other spouse (treason, serious criminal offense, encroachment on the life of a spouse, pimping, immoral lifestyle). The second type was divided into divorce by mutual consent and divorce by the will of one spouse in the presence of justifiable reasons. Such reasons were a vow of chastity, entering a monastery, and inability to have children.

The person guilty of divorce lost his dowry, he could be subjected to exile, imprisonment in a monastery, and he could be prohibited from entering into a new marriage.

In case of unilateral divorce, heavy fines were imposed on the spouse who granted the divorce. The same consequences were established for the spouse whose fault was the reason for the unilateral divorce.

Entering into a second marriage in the postclassical period required compliance with certain rules: a widow could remarry no earlier than 10 months, and subsequently - 12 months.

If this rule was violated, she was subject to a fine and limited inheritance.

Restrictions were also introduced to protect the interests of children from the first marriage. 15.

“Marriage, or so-called matrimony, is the union of a man and a woman, presupposing a community of life.” This definition is enshrined in the Institutes of Justinian (1.9.1). The classical jurist Modestine characterizes marriage as “the union of husband and wife, the union of all life, communion in right divine and human” (D. 23.2.1).

From the above definitions it is clear that the Romans recognized monogamous marriage.

They distinguished between a real, legal Roman marriage, which only persons who had iusconubii could enter into. Only from such a marriage were children considered legitimate and subject to paternal authority and had the right of inheritance.

A union between persons who did not have iusconubii was an illegal marriage. It did not have the above legal consequences, although it was permitted by law.

The cohabitant (concubine) did not share the social status of her cohabitant. With the development of law, children from incubation receive certain rights.

Cohabitation between slaves, between slaves and freemen, did not matter at all.

In order for a marriage to be recognized as valid and legally binding, it had to meet certain conditions.

The right to enter into legal marriage (iusconubii) originally belonged only to Roman citizens and latiniveteres.

In different historical periods, laws introduced various restrictions on certain persons entering into legal marriage.

Thus, before the Law of Canuleus 445 BC. Marriages between patricians and plebeians were prohibited. Before the Law of Augustus 18 BC there was a ban on marriages between freedmen and freeborns.

An obstacle to marriage was direct kinship without restrictions and collateral kinship with various restrictions depending on changing legislation.

Marriages entered into in violation of established prohibitions were subject to annulment. Such marriages did not entail any legal consequences.

In post-classical law, the term iusconubii loses its meaning and ceases to be used.

The marriageable age was set at 12 years for women, and at 14 years for men. In ancient times, consent to marriage was required from the landlord and the groom if he was personasuiuris. Later, the consent of the subordinates of the bride and groom and their householders began to be required, and on the part of the groom, additionally, the consent of the person under whose paternal authority he could be in the event of the death of the paterfamilias. Later, in a number of cases, children were given the right to marry without the consent of the paterfamilias.

The marriage was preceded by an engagement, which, according to Florentin, “is an offer and promise of a future marriage” (D. 23.1.1). It was accomplished through two stipulations. As Ulpian wrote: “Betrothal (sponsalia) is so called from the word promise (spondere); since the ancients had the custom of stipulating and, through a solemn promise, acquiring wives for themselves” (D. 23.1.2). It was concluded between the paterfamilias of the bride and the groom or his paterfamilias. If the agreement was violated, the perpetrator could be punished for the damage caused.

During the post-classical period, the practice of paying a deposit or wedding deposit was introduced at the time of engagement.

Types of marriage. Forms of marriage. The oldest marriage characteristic of the patriarchal system was cummanu. The wife in this marriage fell completely under the authority of her husband or his householder, if the husband was a subject. This extended to both her person and her property. Legally, she becomes a daughter. She ceases to be an agnate of her former family and becomes an agnate of her husband and his family.

As Guy pointed out, “the transition to the power of a husband was accomplished in three ways: prescription, sacrificial bread and purchase” (Gai, 1.110).

“In the Confaraean manner, women enter into the power of their husband through a certain kind of sacred rite, which is performed by the bride and in which wheat bread is consumed - which is why this solemn rite of marriage is also called confarreatio” (Gai, 1.112). This ritual was performed in the presence of 10 witnesses and priests, and was accompanied by solemn words. This is a religious act. It was used among patricians.

“As for the “purchase”, on the basis of it, women enter into the power of their husband by mancipation, i.e. on the basis of a symbolic sale, in the presence of less than five witnesses from adult Roman citizens, as well as a weigher, the one under whose power buys the wife she passes over" (Gaius 1.113). This method is called coemptio. It arose among the plebeians, later becoming common.

The laws of the XII Tables indicate the existence of another marriage - sinemanu, in which the wife was not under the authority of her husband. Table VI stipulates that “a woman who did not want her husband’s power to be established over her [by the fact of long-standing cohabitation with her] had to leave her home for three nights every year and thus interrupt the one-year long-term possession [of her].” This was to be repeated annually. At the same time, the sinemanu marriage did not change the legal status of the wife. She maintained her previous marital status, continuing to be personasuiuris if she had been one before marriage, or remaining subject to her father and legally alien to her children and husband. In the sinemanu marriage, she remained an agnate of her former family. In property terms, the wife did not depend on her husband.

Having arisen later than the cummanu marriage, the sinemanu marriage exists parallel to it for 200-300 years. In the 2nd half of the republic, sinemanu marriage becomes predominant, and in the era of classical jurists - the only type of marriage.

In later times, it was concluded by a simple agreement between those entering into marriage, after which the wife moved into her husband’s house.

The difference between sinemanu marriage and concubinage is that it was concluded with the intention of starting a family and raising children.

End of marriage

The grounds for ending a marriage included both objective and subjective reasons. The first included: the death of one of the spouses; deprivation of freedom of one of the spouses (captivity, slavery), and only the sinemanu marriage was considered terminated; deprivation of citizenship of one of the spouses; change in the marital status of one of the spouses, which makes marriage impossible. Divorce was considered subjective.

Freedom of divorce existed in Roman law throughout its history.

Divorce cummanu was possible only on the initiative of the husband (in cases of infidelity, drunkenness, infertility of the wife) in the opposite form to the one in which it was concluded: confarreatio - in the form of the diffareatio rite; comptio - in the form of remansipatio.

Divorce of a sinemanu marriage was allowed by agreement of the parties and by the unilateral expression of the will of any of the spouses.

Over time, the reasons for divorce began to influence its consequences, which resulted in property losses.

The person guilty of divorce lost his dowry, he could be subjected to exile, imprisonment in a monastery, and he could be prohibited from entering into a new marriage.

Entering into a second marriage in the postclassical period required compliance with certain rules: a widow could remarry no earlier than 10 months, and subsequently - 12 months.

If this rule was violated, she was subject to a fine and limited inheritance.

Restrictions were also introduced to protect the interests of children from the first marriage.

Family concept. The evolution of family relationships

The definition of family (familia) was given by the famous Roman lawyer Ulpian (D. 50.16.195.1-2).

He pointed out that the term "has different meanings, since it can refer to both things and persons." He also distinguished between the family in the narrow, or strict, sense (proprioiure) and the broad family at common law (familia communiiure).

Ulpian wrote: “In the strict sense of the word, we call a family a collection of persons under the authority of one person, subordinate to him by birth or by right.” “Family by common law (kinship) we call the family of all agnates...subject to the authority of one person, since they come from the same house and clan.”

The clan community (familia gentilicia) was the most extensive kinship union. Members of the same gens (gens) had a common ancestor, bore the common name of this ancestor, they had a common ancestral cult, an altar.

Property differentiation within the clan with the formation of the state contributes to the separation of smaller unions - families - from the clan.

At its core, the ancient Roman family was strictly patriarchal. It was built on the principles of the absolute power of the head of the family (paterfamilias) over his wife, dependent children, other relatives, slaves, bonded laborers, as well as over all property.

At first it was equal power (manus) over everyone. However, over time, this power began to be divided into:

dominicapotestas - over things, slaves; manusmariti - najenoy; patriapotestas - over children; mancipium - above the bonded.

The power of the householder ceased only with his death or by his will. After the death of the householder, the family status of all subordinates changed.

Only the landlord had full legal capacity. He was a person of his own right (personasuijuris), all other family members were persons subject to him - persons of someone else's right (personaalienajuris).

Gradually, but very slowly, the power of the householder over his subjects is weakened. The wife and children receive recognition of their rights, the position of free subjects improves significantly compared to the position of slaves.

Kinship. Roman law knew two types of kinship: agnatian and cognatian.

Agnatic kinship corresponds to the character of the ancient Roman family, which was based on subordination to the power of one ruler - this is kinship by power (agnatio). The Agnates are united by civil kinship (Gaius 3.10). Agnate kinship arose through the male line. Guy wrote: “Agnates are relatives, united by kinship through males:” (Gai, 1.156). Further: “But those who are connected by blood through females are not agnates...”. A daughter who married into another family became legally a stranger to her former family, since, falling under the authority of the new householder, she became an agnatic relative of the new family. At the same time, the adopted person became an agnatic relative of the adoptive parent's family. Only this type of kinship was recognized by civil law.

Blood kinship (cognatio) - cognatic kinship was initially not taken into account at all.

It receives legal significance only in praetor's law. As the patriarchal foundations of the family weakened, Cognatian kinship became increasingly important. In Justinian's law it completely replaced the agnatic law.

The Romans determined kinship by lines and degrees.

Persons descended from one another (father and daughter) are called direct relatives.

Ascending- these are relatives from descendant to ancestor (father, grandfather, great-grandfather); in a descending line - these are relatives from ancestor to descendant (great-grandfather, grandfather, father).

Persons descended from a common ancestor (uncle and nephew, brother and sister) are called collateral relatives.

Lateral kinship could be full blood if both mother and father are common; and half-bred: if there was a common mother, then it was called half-bred; if the father is common - half-blooded.

The degree of kinship was determined by the number of births separating relatives from each other. Mother and son are relatives of the 1st degree, grandfather and grandson are relatives of the 2nd degree.

The property and attitude of one spouse to the cognates of the other (father-in-law, mother-in-law, son-in-law) also differed.

Why go to the registry office if marriages are made in heaven, or Civil marriage: pros and cons Sergey Sergeevich Arutyunov

MARRIAGE IN ROMAN LAW

Get excited, heart, before us is Rome!

Not the second - Constantinople, not the third - Moscow, but precisely the same one - ancient, first and intoxicated with glory!

In terms of seniority, it is the Roman marriage traditions that precede Christian marriage: Christianity, although it was first adopted as a state religion not in Rome, chose the place of its first consecration - with the blood of the first Christians - in the future Italy, and then - the empire, which was gradually beginning to fade away.

Everyone, except the children, is wearing wide linen fabrics loosely wound around the body. Men are stern, women are beautiful, but just like men, they are stern; slaves and slaves are single until death - it is not allowed. Do noble Romans marry noble Roman women? Naturally, married.

And again, “breaking the mold”: not every family, not every relationship between a man and a woman was recognized by Roman law as a marriage, giving rise to legal consequences and associated with legally recognized relationships between the participants in this union.

Marriage (matrimonium)- the union of a man and a woman, the union of all life, the community of divine and human law - says Roman law.

This general understanding, formulated by the classical jurist Modestine, reflected the subordination of the regulation of marriage and family ties to legal norms of dual origin:

1. As a manifestation of the requirements of “human law,” the marriage union is subject to the provisions of civil law (both public and private).

2. As a manifestation of the requirements of “divine law,” the marriage union must meet the highest prescriptive requirements of a moral and religious nature presupposed by human law.

In the canons of Roman legal culture, marriage was not only a private matter, much less a relationship only within the framework of private law: people do not have the power themselves and at their own whim to predetermine what marriage should be like, what can be followed in it and what can be avoided.

The ambiguous legal origin of the institution of marriage as a whole determined the complexity of its legal construction in Roman law.

Roman marriage is characterized by:

1. reciprocity; two partners enter into it without having in mind unconditional equality;

2. condition physical maturity and the presence of certain sexual qualities of partners: does not meet its purpose and cannot be considered as such a “marriage” between people of the same sex or with undefined sexual characteristics, as well as between partners who do not correspond to traditional ideas of age;

3. consent partner, expressed personally or by his legal representative: marriage cannot and should not be concluded under force ( Libera matrimonia essay), just as marriage cannot be the subject of any categorical orders or instructions from officials, public authorities, etc.;

4. presence of sexual intercourse between married partners: a marriage in which sexual relations are excluded in advance or the parties refuse such relations cannot be considered valid;

5. desire partners to enter into a marriage union: only sexual relations cannot serve as a prerequisite for the recognition of marriage;

6. constant life together spouses, or, in any case, the desire for such: partners in marriage have a single place of residence, run a common household, etc.

The absence of any of these conditions calls into question the legal meaning of the marriage union, transfers the relationship between a man and a woman to a different quality, or serves as a basis for declaring the marriage invalid.

Proper marriage (nuptiae) a union concluded by a man and a woman of the same legal quality was recognized; this marriage was concluded in special forms recognized by law, this marriage gave rise to all the personal and property consequences for the spouses provided for by law.

Wrong marriage (matrimonium), or a marriage union in general, recognized a union between partners of different rights (between a Roman man and a woman of a different citizenship); this marriage gave rise to all legal consequences for the spouses, but not in accordance with the requirements of civil law.

Finally, marital cohabitation (contubernium) was formalized if the spouses did not have the necessary personal legal qualities for their family union to be recognized by law. It was only necessary that this cohabitation be permanent and characterized by the presence of a kind of family relationship - the latter distinguished marital cohabitation from casual or temporary sexual intercourse ( adulteriurn), which under certain circumstances could even qualify as a criminal offense.

Before reaching the age of 60 for men and 55 for women, marriage was considered an obligatory and benevolent institution; after reaching old age, the conclusion of a marriage union was considered as reprehensible. During the era of reception of Roman law ( perception, that is, recollection and adaptation of primary sources for the purposes of modernity) marriage after 80 years was considered a sufficient reason for the nullity of this union in the legal sense.

A union between persons of inappropriate status could not be recognized as a marriage. social level: for example, between a senator and an artiste, between a magistrate and a woman subject to his official authority. When intending to get married, one should take into account the religious differences of possible partners: a legal marriage can only be concluded between persons one religion and according to the rules of one religious procedure.

Consanguinity were also an obstacle to marriage.

In the pre-Christian pagan era, the range of marriage conditions was significantly narrower than in the Christian era, which indicates freedom of morals, despite the abundance of regulation presented.

To the credit of Rome, it is often misunderstood among us. He was simply a thousand-year-old kingdom of everyday experience and common sense.

Which, in fact, scares him away.

From the book Parkinson's Laws [How to succeed in work, play, and family life with the most modest abilities] author Parkinson Cyril Northcote

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Introduction

Legal essence of marriage

Types of marriage and forms of conclusion

Conditions for marriage

End of marriage

Conclusion

Bibliography

Introduction

The active external expansion of Rome, its numerous military campaigns to maintain and develop the slave society, led to an increase in the loss of personnel of the Roman army, which required regular replenishment, which influenced the development of marriage, family and inheritance legislation. Thus, the principle of the marriage contract was changed - mancipation, the laying on of hands (cum manu) on the wife and her property, and new simplified forms of marriage - matrimonium and concubinage (cohabitation) - began to be recognized by law. With the growth of wealth, rich ladies could afford a marriage contract without the laying on of hands (sine manu), which had to be confirmed annually, spending at least three nights outside the husband’s house, with parents or relatives, so as not to lose their property. In addition, in the event of a divorce due to her husband’s fault, the dowry was returned to her in part or in full. In the era of classical Roman law, a widow was included in the number of obligatory blood relatives and received a full inheritance share if she had the title of matron who gave birth to three children.

Legal essence of marriage

A family is formed through marriage. Marriage is defined by the Roman jurist Modestine as: “the union of husband and wife, the union of all life, the community of divine and human law.” This idealistic definition of marriage did not correspond to the actual situation, even in the classical era, when Roman law reached its highest development, a woman was far from being an equal partner with her husband.

The ambiguous legal origin of the institution of marriage as a whole determined the complexity of its legal construction in Roman law. Marriage is characterized by:

reciprocity; two partners enter into it without having in mind unconditional equality;

a state of physical maturity and the presence of certain sexual qualities of partners: does not meet its purpose and cannot be considered as such a “marriage” between people of the same sex or with uncertain sexual characteristics, as well as between partners that do not correspond to traditional ideas of age;

the consent of the partner, expressed personally or by his legal representative: marriage cannot and should not be concluded under duress (Libera matrimonia esse), just as marriage cannot be the subject of any categorical orders or instructions from officials, public authorities, etc.;

the presence of sexual relations between partners in marriage: a marriage in which sexual relations are excluded in advance or the parties refuse such relations cannot be considered valid;

the desire of partners to enter into a marriage union: only sexual relations cannot serve as a prerequisite for recognition of marriage;

permanent joint life of the spouses, or, in any case, the desire for such: partners in marriage have a single place of residence, run a common household, etc. The absence of any of these conditions calls into question the legal meaning of the marriage union, transfers the relationship between a man and a woman to a different quality, or serves as a basis for declaring the marriage invalid.

A proper marriage (nuptiae) was recognized as a union concluded by a man and a woman of the same legal quality: this marriage was concluded in special forms recognized by law, this marriage gave rise to all the consequences of a personal and property nature for the spouses provided for by law. An irregular marriage (matrimonium), or a marriage union in general, was recognized as a union between partners of different rights (between a Roman and a woman of another citizenship, between peregrines, etc.): this marriage gave rise to all legal consequences for the spouses, but not in accordance with the requirements of civil rights. Finally, marital cohabitation (contubernium) was formalized when the spouses did not possess the necessary personal legal qualities for their family union to be recognized by law; it was only necessary that this cohabitation be permanent and characterized by the presence of, as it were, family relationships. The latter distinguished marital cohabitation from casual or temporary sexual intercourse (adulterium), which under certain circumstances could even be qualified as a criminal offense.

To have their union recognized as a legal marriage, the spouses had to have the appropriate personal and social qualities. It was assumed that not all persons could enter into marriage: minors, the insane, castrati, and slaves were excluded from possible marriage partners. With all the legal qualities of marriage, the partners had to be at the appropriate age for marriage: men (pubes) must be at least 14 years old, women must be at the age determined by puberty (viripotens), i.e. over 13 years old (in the classical era - 12 years old). Before reaching the age of 60 for men and 55 for women, marriage was considered an obligatory and benevolent institution; after reaching old age, entering into a marriage was considered reprehensible. In the era of the reception of Roman law, marriage after 80 years was considered a sufficient reason for the nullity of this union in the legal sense. A union between persons of an inappropriate social level, for example, between a senator and an artist, or between a magistrate and a woman subject to his official authority, could not be recognized as a marriage. When intending to get married, one should take into account the religious differences of possible partners: a legal marriage can only be concluded between persons of the same religion and according to the rules of the same religious procedure. Consanguinity was also an obstacle to marriage - however, in the pre-Christian era the range of degrees prohibited for marriage was significantly narrower than in the Christian era.

Types of marriage and forms of conclusion

Roman law distinguished (up to Justinian) matrimonium iustum, or matrimonium iuris civilis, a legal Roman marriage, and matrimonium iuris gentium (marriage between persons who did not have ius conubii).

In pre-Justinian law, marriage was distinguished cum manu mariti, i.e. marriage with husband's authority, by virtue of which the wife came under the authority of her husband (or the householder, if the husband himself was a subject), and marriage sine manu, in which the wife remained subordinate to the previous householder or was an independent person. Marriage sine manu was similar in appearance to concubinage, but differed from it in the special affectio maritalis, the intention to found a Roman family, to have and raise children (libero-rum quaerendorum causa).

As Guy pointed out: “the transition to the power of a husband was accomplished in three ways: prescription, sacrificial bread and purchase.”

“Through long-term cohabitation, the woman who remained continuously a wife for a whole year entered into the power of her husband, having become, as it were, a year-long possession of her husband’s property.” - this method is called usus.

In a confarean way, women enter into the power of their husband through a certain kind of sacred rite, which is performed by the bride and in which wheat bread is consumed - which is why this solemn rite of marriage is also called confarreatio. This ritual was performed in the presence of 10 witnesses and priests, and was accompanied by solemn words. This is a religious act. It was used among patricians.

As for the “purchase”, on the basis of it, women enter into the power of their husband through mancipation, i.e. on the basis of a symbolic sale, in the presence of less than five witnesses from adult Roman citizens, as well as a weighmaster. The wife is bought by the one under whose power she passes. This method is called coemptio. It arose among the plebeians, later becoming common.

The laws of the XII Tables indicate the existence of another marriage - sine manu, in which the wife was not under the authority of her husband. Table VI stipulates that “a woman who did not want her husband’s power to be established over her (by the fact of long-standing cohabitation with her) had to leave her home for three nights every year and thus interrupt the one-year long-term possession of her.” This was to be repeated annually. At the same time, a sine manu marriage did not change the legal status of the wife. She maintained her previous marital status, continuing to be persona sui iuris if she had been such before marriage, or remaining subject to her father and legally alien to her children and husband. In a sine manu marriage, she remained an agnate of her former family. In property terms, the wife did not depend on her husband.

In later times, it was concluded by a simple agreement between those entering into marriage, after which the wife moved into her husband’s house.

The difference between a sine manu marriage and a concubinage is that it was concluded with the intention of starting a family and raising children. Concubinage should be distinguished from “blue manu” marriage. Concubinage in Ancient Rome was the legal permanent cohabitation of a man and a woman. Unlike concubinage, marriage was concluded with the intention of starting a family and raising children.

Concubina did not share her husband’s social status; children from concubina were not subject to paternal authority. Despite the monogamous nature of the Roman family, in the Republican era it was considered acceptable for a man, along with matnmonium with one woman, to have concubinage with another. On the contrary, any cohabitation of a woman with another man other than her husband gave the husband, in ancient republican law, the right to kill his wife.

Conditions for marriage

In order to consummate a marriage with the corresponding legal consequences, it was necessary that the spouses meet certain conditions. Some of these conditions were absolute and had to be present for the conclusion of any Roman marriage. Others practically played the role of relative conditions, the presence of which was necessary for marriage between persons belonging to different social groups.

The first condition for marriage was the achievement of marriageable age, which, coinciding with the age of majority, after some fluctuations was set at 14 years for men and 12 years for women.

The second condition was consent to marriage. In ancient times, this was the consent of the householder alone. The groom expressed his will if he had full legal capacity (a legally competent bride needed the consent of the guardian (auctoritas tutoris)).

However, a different view gradually emerged: in order to marry a person who is not fully capable, one must first of all have his consent and, along with it, the consent of the head of the bride’s family and the consent of both the head of the groom’s family and the person under whose paternal authority the groom may end up with the death of the head families. Thus, consent to the marriage of a grandson is given not only by his head of the family - the grandfather, but also by the father, subordinate to the authority of the same grandfather, for after the death of the grandfather the grandson will be under the authority of his father, to whom the son has no right to impose heirs, future children from the marriage. On the contrary, a granddaughter, entering into marriage, not only does not impose heirs on her grandfather and father, but she herself ceases to be their heir, joining the agnatic family of her husband. The head of her family gives consent to the bride to leave the old agnatic family.

Thus, initially, all provisions regarding consent to marriage proceeded from the same idea of \u200b\u200bpower on which the agnatic family in general rested. The father gave consent to the marriage of his children not because he was the father, but because he was the head of the family, the bearer of paternal authority.

But as the personality of the children begins to emancipate from the once unlimited power of the head of the family, the interests and will of the children begin to be increasingly taken into account in the question of the landlord’s consent to marriage. Thus, the Law of Julius (4 AD) granted descendants the right to appeal to the magistrate the unjustified refusal of the head of the family to consent to marriage. Then the children were allowed to marry without his consent if he was captured or missing. There were cases when consent to marriage was sought not from an agnatic relative, but from relatives by blood: a woman who, being under guardianship, could marry only after receiving the consent of the guardian (auctoritas tutoris), after the end of guardianship over women, was obliged ask permission for marriage from the father, and in the absence of the father - from the mother or other close relatives.

The third condition for entering into a Roman marriage is that the spouses have the right to enter into a legal marriage. Obstacles to marriage in the absence of this condition could arise either from the belonging of the bride and groom to different strata of society (later classes), or from family ties between them or sometimes from other relationships that existed between them. Thus, first of all, the Law of Canulius (445 BC) did not allow marriages between patricians and plebeians. Before the first marriage law of Augustus, the Law of Julius (18 BC), marriages of freedmen with freeborns were not allowed, and after the Law of Julius - with persons of the senatorial class.

Further, kinship, both agnatic and cognatic, served as an obstacle to marriage: in the direct line without limiting the degrees, in the lateral lines, in ancient times, apparently, up to the sixth degree; with the abolition of this rule and until the end of the republic - between persons whose mothers were sisters (consobrini), and whose fathers were brothers; finally, during the period of the empire, only between persons, at least one of whom is a descendant of the first degree of a common ancestor for both, for example, between uncle and niece, aunt and nephew, etc. Imperial decrees more than once made exceptions to this general rule.

During the period of the empire, property in the direct line also became an obstacle to marriage without limiting degrees, and under Christian emperors - also in the lateral lines between son-in-law and sister-in-law.

In addition, marriages between the guardian and the ward, the ruler of the province and the residents of the latter were prohibited. The Julian Law prohibited marriages between an adulterous spouse and his accomplice.

Ways to get married. The marriage was preceded by betrothal. In ancient times, it was performed by the bride and groom with the consent of the heads of families. The betrothal took place in the form of mancipation. At a later time it took place without observing formalities. The party that violated the betrothal agreement lost the right to the gifts transferred by it to the other party, and also returned what it received from the party.

Marriage was celebrated in Rome in three ways:

by performing a religious ceremony;

by the groom buying a bride;

by simple agreement of the parties.

The first two ways of marriage gave rise to a “proper marriage,” a marriage with male authority (cum manu). The third method of marriage led to the establishment of an “incorrect marriage,” a marriage without male authority (sine manu).

Religious rite (confarreatio) took place in wealthy patrician families. This method was a magnificent ceremony, accompanied by eating flat cakes (bread) and bringing food in favor of Jupiter. The ceremony took place in the presence of a priest and 10 witnesses.

The groom's purchase of the bride (coemptio) was carried out in the form of mancipation, which was carried out by the landlord. It took place in the presence of five witnesses, a weighmaster with scales, and was accompanied by the utterance of certain words.

A simple agreement between the parties did not require special marriage formalities. The marriage was considered concluded with the bride being taken to the groom's house. With this method of marriage, the husband's power over his wife was established by one year of continuous marital cohabitation.

End of marriage

Freedom of divorce existed in Roman law throughout its history. Divorce cum manu was possible only on the initiative of the husband (in cases of infidelity, drunkenness, infertility of the wife) in the opposite form to the one in which it was concluded: confarreatio - in the form of the diffareatio ritual; comptio - in the form of remansipatio.

Over time, the reasons for divorce began to influence its consequences, which resulted in property losses.

The person guilty of divorce lost his dowry, he could be subjected to exile, imprisonment in a monastery, and he could be prohibited from entering into a new marriage.

Entering into a second marriage in the postclassical period required compliance with certain rules: a widow could remarry no earlier than 10 months, and subsequently - 12 months.

If this rule was violated, she was subject to a fine and limited inheritance.

Restrictions were also introduced to protect the interests of children from the first marriage.

Conclusion

Thus, we can conclude that marriage is the union of husband and wife, the community of all life, the unity of divine and human law (the definition given by Modestine in Justinian’s Digests).

Roman law distinguished between two types of marriage: marriage with the authority of the husband (cum manu mariti); marriage without the power of the husband ("sine manu" - sine manu).

The marriage of the “blue manu” had to be renewed annually. Types of marriage differed from each other both on formal grounds (the procedure for conclusion, dissolution, etc.) and in essence (different scope of the wife’s legal capacity). Concubinage should be distinguished from “blue manu” marriage. Concubinage in Ancient Rome was the legal permanent cohabitation of a man and a woman. Unlike concubinage, marriage was concluded with the intention of starting a family and raising children.

There were three ways of concluding a marriage: a solemn religious ritual with the participation of priests and 10 witnesses, accompanied by a sacrifice (in ancient times); the husband's imaginary purchase of his future wife from her father according to the rules established for the acquisition of valuable things ("bride mancipation"); a marriage “sine manu,” that is, without the power of the husband, was concluded without any formalities.

Freedom of divorce existed in Roman law throughout its history.

Divorce sine manu was allowed by agreement of the parties and by the unilateral expression of the will of either spouse.

Bibliography

Barinova M.N., Maksimenko S.T. Roman private law. - Justitsinform, 2006. - 208 p.

Vasilyeva T.G., Pashaeva O.M. Roman law. - Higher education, M., 2006. - 160 s.

Lemeshko V.M. Roman law. - TEIS, M., 2006. - 310 p.

Omelchenko O.A. Roman law. - TON-Ostozhye, M, 2005. - 208 p.

Smirnov M.M. Roman private law (lecture notes). - PRIOR, M., 2006. - 96 s.