The concept and forms of marriage in Roman law. The concept of marriage in Roman law. To enter into a Roman marriage it was required

Marriage is the union of a man and a woman, the unity of all life, the unity of divine and human rights.

Marriage, or so-called matrimony, is the union of a man and a woman with the goal of living together.

Conditions for marriage.

Only persons who had freedom could enter into a legal Roman marriage (a union between slaves is not marriage, but cohabitation in the narrow sense);

A Roman marriage could only be entered into by persons who were recognized as having the right to create a legal Roman marriage. The ancient Latins also had this right. When this right was absent, a legal Roman one, according to the provisions of civil law, did not arise, although the marriage could be valid according to the law of nations;

Only persons who were capable of fulfilling the natural purposes of marriage could enter into a Roman marriage, i.e. persons who were sexually mature: women from 12, and men from 14 years old;

A valid Roman marriage required the absence of another marriage;

A legal marriage required the consent of the spouses, since marriage does not arise from copulation, but as a result of consent.

Roman private law knew several types of marriage: 1) marriage, which established male power over the wife (cum manu); 2) marriage without husband's authority (sine manu).

Marriage cum manu was the most ancient type of marriage. In this marriage, the wife entered into the agnatic family of her husband and became subject to the husband himself. In this marriage, the power of the husband was unlimited, the legal personality of the wife was absorbed by the legal personality of the husband. The wife's residence was determined by the husband's residence. The husband's power also extended to the property relations of the spouses. There was one subject of property rights in the family - the husband, who owned not only the property acquired during the marriage, but also what had previously been the property of his wife. At the same time, the husband was obliged to protect his wife from causing her insults. The wife shared her husband's social status.

This marriage could be concluded in three ways: confarreatio, coemptio and usus.

Confarreatio was a solemn rite of a religious nature, which was carried out in the presence of ten witnesses and the high priest of Jupiter and required the performance of certain sacred actions dedicated to Jupiter, with sacrifice and the general celebration of sacred libations and the eating of spelled wheat bread. Only patricians could enter into auxiliary marriages.

Coemptio (purchase) is a later form of marriage available to all citizens, which was concluded in a secular ceremony by manumission, i.e. based on a symbolic sale.

Usus is a marriage resulting from the woman's continuous residence in her husband's house for a year. At the same time, the Law of the 12 Tables already established the position that a woman who left the family home for three nights in a row every year thus interrupted cohabitation and avoided falling under the authority of her husband or head of the family.

Married sine manu the husband did not acquire any power over his wife, who remained under paternal authority and retained all the rights associated with her belonging to her family of origin. At the same time, the wife could maintain her personal and property independence. However, in order to facilitate material family life, the woman, as a rule, contributed a dowry (dos), which covered things or other parts of property provided to the husband by the wife, her head of the family or a third party.

A false marriage was concluded by reaching an agreement between the persons who entered into it. However, if they were under the authority of the heads of families, then their consent was required. The refusal of the heads of families to consent to marriage could be appealed to the magistrate.

Divorce.

The marriage was dissolved in the presence of objective and subjective reasons.

Objective reasons included:

Death of one of the spouses;

Loss of freedom by one of the spouses;

Loss of citizenship by one of the spouses;

Beginning incest.

Subjective reasons included divorce (divortium). The divorce could be unilateral, i.e. based on the application of one of the spouses to renounce marriage, or mutually.

Since the post-classical period, unilateral divorce began to be considered legal if it occurred on fair grounds, for example, the infidelity of a wife, husband... or for justifiable reasons that did not require the fault of the other spouse, for example, as a result of a vow of virginity, being captured . In the event of a divorce without grounds, strict sanctions could be applied to the divorced spouses, ranging from confiscation of the dowry to deportation to the island.

Divorce that occurred by mutual consent of the parties was considered legal throughout the postclassical period.

Divorce did not require any formal form. However, Julius’ law “On Adultery,” in order to clarify family relations, made it mandatory to publicly announce a divorce in the presence of seven witnesses.

Roman law distinguished between different types of marriage. Marriage between citizens who had the right to marry was recognized as legal; Only in such a marriage did children receive full legal capacity and become citizens. Legal marriage could be carried out in two ways:

Marriage with husband's authority (marriage cum manu), in this case the wife was under the unlimited authority of her husband, to the point that the husband had the right to kill or sell her, and if the husband was under the authority of the landlord, then the latter had this right.

The husband's power equally concerned his children from this marriage;

A sine manu marriage is a marriage without passing under the authority of the husband, when a woman remained under the authority of the previous agnate (and if she had independence, she remained independent from her husband), she entered into a marriage relationship with the sole purpose of forming a family and raising children.

In a legal marriage, the wife received her husband's name and class position, but at the same time, the husband's rights extended to sue the wife from any place in which she was, and she was obliged to submit. Later, Roman legislation declared the need for mutual respect between spouses. The husband's power ceased to extend to the life or sale of his wife. Illegitimate marriages could be expressed as simple intermittent cohabitation; Children in the case of such cohabitation did not receive any rights.

The procedure for concluding and dissolving a marriage.

The transition to the power of the husband took place in one of three ways: prescription, sacrificial bread and purchase. Through long-term cohabitation, the woman who remained the wife for a year entered into the power of her husband; she became the property of her husband, joined his family and took the place of her daughter. In a confarreational way, women entered into the power of their husband through a sacred rite performed by the bride, this solemn rite is called confarreatio. The ritual was given great importance; for example, only persons born in a marriage concluded through confarreatio could occupy the highest priestly positions. Based on the purchase, women entered into the power of their husband through mancipation, that is, a symbolic sale; in the presence of five witnesses from adult Roman citizens and a weighmaster with copper scales, the wife was bought by the one under whose authority she passed. The rite of mancipation involved the sale of a woman, which was no different from the sale of animals, slaves and land. In addition to mancipation, there was also coemptio, also a “sale,” but not necessarily for marriage, but also for eliminating guardianship, for emancipation, etc. The difference between coemption and mancipation was that the woman who committed coemption was not considered a slave, but women and men mancipated by parents and fictitious husbands were recognized as slaves; They could even receive an inheritance only if they were freed as slaves by will.

The reason for the termination of a marriage could be the death of one of the spouses, loss of freedom, or divorce.

In the classical era, divorce could occur by mutual consent or by unilateral withdrawal of the desire to end marriage. Under Justinian, free divorce by consent of the parties was prohibited; unilateral divorce was allowed due to the following circumstances - if:

The husband was unfaithful;

He made an attempt on the applicant's life;

Committed another culpable act against the applicant.

The desire to enter a monastery was also considered a valid reason. A unilateral divorce without explanation or for an unexcused reason was carried out with the payment of a fine, but the marriage was still dissolved.

Concubinate.

Concubinage is a special form of cohabitation between a man and a woman permitted by Roman law. Concubinage existed along with legal Roman marriage, but, in fact, it was not a marriage, since several conditions of a marriage union possible in society were violated: 1) concubinage was not sealed with the necessary formalities; 2) it could be concluded between a Roman and a woman of any position; 3) existed parallel to legal marriage and simultaneously with it; 4) during concubinage, a woman did not fall under the undivided power of her husband; 5) the woman did not receive the social status of her husband; 6) children born in concubinage were not subject to paternal authority and, accordingly, did not receive any rights.

The law indicated that Roman citizens then entered into a legal and effective marriage and had power over the children born to them when they were married to Roman citizens and even Latins and foreign women with whom there was a jus connubii (recognized ability of a person to enter into a Roman marriage with all legal consequences).

Since connubium entitles children to inherit their father's fortune, they not only become Roman citizens, but are also under the authority of their father. In the Republican era, given the monogamous nature of the Roman family, it was considered acceptable for a man, along with matrimonium with one woman, to be in concubinage with another, but a woman could not be in two types of marriage; she was prohibited from double cohabitation. Concubina in Rome was a kind of form of civil marriage, when it was impossible to legitimize the relationship (for example, the Roman already had a wife, the concubina was at the bottom of the social ladder or had reasons for which it was forbidden to marry by law, as in the case of the official position of a master and a citizen from its provinces, etc.). sometimes the concubinage was concluded between a Roman and an independent woman, that is, a woman who made a symbolic sale of herself into the property of another man and was released by him by agreement. Children from a concubinage could inherit from their father only if he officially recognized them through adoption, only then did he receive power over them (and they received all the rights to inherit property arising from this power).

The Roman lawyer Modestine (III century AD) determined marriage as the union of husband and wife, the union of all life, the community of divine and human law. This definition, however, did not correspond to the actual state of affairs.

Three forms of marriage in Roman law:

- cum manu - by virtue of which the wife came under the authority of her husband (or the landlord, if the husband himself was a subject);
- sine manu - (the wife remained subordinate to the previous landlord, or was an independent person);
- concubinage (conditionally, since it was not formally a marriage).

More details

The first form of marriage in Rome was a marriage called cum manu - marriage that established the husband's authority over his wife. Having entered into such a marriage, a woman fell under the power of her husband or his lord and became an agnate in her husband’s house.

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However, already in ancient times a woman could escape the power of her husband. To do this, she had to enter into marriage without observing any formalities (sine manu) - a marriage that did not give rise to the husband's power over his wife. If within a year after the conclusion of such a marriage a woman spent three nights in a row outside her husband’s house, she did not become a lamb in her husband’s house. This procedure could be repeated annually. If the wife did not leave home, then she fell under the authority of her husband and the marriage turned into a marriage with the authority of the husband (cum manu). Sine manu marriage is a form of marriage based on the equality of spouses, the independence of the wife from her husband. The wife was the mistress of the house and the mother of the children. The remaining issues were the responsibility of the husband. Presumably during the second period of the Republic this form of marriage replaced cum manu and became predominant.

In the 1st century BC e. a special form of marriage appeared - concubinage, permanent (and not casual) cohabitation of a man and a woman permitted by law, but not meeting the requirements of a legal marriage. Concubina did not share her husband’s social status; children from concubina were not subject to paternal authority. This is the permanent cohabitation of two persons, neither of whom has been married, for the purpose of creating a vital community. Children born to concubine were not considered legitimate, and therefore were limited in their inheritance.

Marriage and conditions for its conclusion

In order to consummate a marriage with the corresponding legal consequences, it was necessary for the spouses to satisfy 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.

Conditions for marriage:

1. reaching marriageable age;
2. consent to marriage;
3. the spouses have the right to enter into a legal marriage.

More details

The first condition 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 there was consent to the marriage and the conditions for its conclusion. In ancient times, this was the consent of the householder alone. The groom expressed his will if he had full legal capacity; a legally capable bride needed the consent of a 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 the provisions on consent to marriage and the conditions for its conclusion were based on 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 children begin to be emancipated from the once unlimited power of the head of the family, the interests 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, could enter into marriage, only after receiving the consent of the guardian (auctoritas tutoris), after the cessation of guardianship over women, was obliged to ask permission for marriage and conditions for its conclusion from the father, and in the absence of the father - from the mother or other close relatives.

The third condition entry 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. So, 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; after 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 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.

Ways to get married

Marriage and the conditions for its conclusion were 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.

Methods of concluding marriage in Roman law:

1. by performing a religious ceremony;
2. by the groom buying a bride;
3. by simple agreement of the parties.

The first two ways of marrying 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.

Simple agreement the parties did not require any 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.

Divorce and its types

Grounds for termination of marriage in Roman law:

1. Death of one of the spouses.
2. Loss of freedom (capitus deminutio maxima) by one of the spouses, i.e., turning him into slavery.
3. Loss (capitus deminutio media) by one of the spouses.
4. Derogation of civil in the form of incest (incestum superveniens).
5. Will of the head of the family.
6. Divorce .
7. Appointment of a freedwoman's husband as senator.

More details

Death of one of the spouses. In the event of the natural death of a wife, men could immediately enter into a new marriage. For women, a period of mourning (tempus lugendi) was established, during which a woman could not marry.

Loss of freedom(capitus deminutio maxima) by one of the spouses, that is, turning him into slavery. Since only cohabitation with a slave is possible, and marriage is impossible, the legal marriage was considered dissolved. If the loss of freedom occurred due to the husband being captured, then the woman could no longer get married, since the husband could return. During the time of Justinian, the waiting period for a husband's return from captivity was limited to five years.

Loss of citizenship(capitus deminutio media) by one of the spouses. Marriage continued to be considered valid only according to natural law.

Impairment of civil legal capacity in the form of incest(incestum superveniens). If, as a result of adoption, the spouses became agnatic relatives, between whom marriage was impossible, then their marriage was dissolved. For example, if the head of a daughter’s family adopted a son-in-law, he became, as it were, the brother of his own wife. This could have been avoided only by first making the daughter legally competent.

The will of the head of the family. In a sine manu marriage, in which the woman remained under the authority of her father, the head of the family could reclaim the woman, thereby depriving her of the opportunity to live a life together. In marriages between those who were not fully legally capable, any of the householders could, at will, dissolve their marriage, declaring it a cohabitation.

Divorce. In ancient Rome, only a man could initiate a divorce. A marriage could be dissolved if a woman behaved inappropriately: drunkenness, infidelity, infertility, and even miscarriage. Divorce as such (divortium) became widespread with the increased popularity of sine manu marriages. Divorce became possible both at the will of the husband (repudium) and at the will of the wife, as well as by mutual consent of the spouses.

Appointment of a freedwoman's husband as senator. This ground for divorce was abolished during the time of Justinian.

Forms of divorce in Roman law:

1. announcement of divorce in front of witnesses (in the Augustan era the number of witnesses was set at seven);
2. written agreement;
3. actual termination of cohabitation.

Since the post-classical era, with the introduction of Christian morality, strict prohibitions have been placed on divorce.

The following types of divorces have arisen:

1) divorce with bad consequences (divorium cum damno):

through the fault of one of the spouses (repudium ex iusta causa) (adultery, serious crime, immoral lifestyle);
without the spouse’s fault (repudium sine ulla causa), i.e. wrong unilateral divorce. Such a divorce was punishable by strict sanctions - from confiscation of the dowry to expulsion, but the marriage was considered dissolved;

2) divorce without consequences (divorium sine damno):

divorce by mutual consent of the spouses (divortium communi consensu);
divorce at the will of one of the spouses (divortium bona gratia). Such a divorce was possible only for a good reason: impotence, entering a monastery, etc.

Introduction

Chapter 1. The concept of family and marriage according to Roman law

1.2 Conditions for marriage

1.3 Marriage

Chapter 2. Types of marriage according to Roman law

2.1 Types of marriage according to Roman law

Conclusion

Bibliography

Introduction

Gaius considered the Roman family system so atypical that he called it an “exceptional achievement” of the Roman people. The difference between the Roman family was that it was not the blood connection between the paterfamilias and his subjects - a cognatic connection - that came to the fore, but a legal connection - in Roman terminology, agnatic.

Sources give us two definitions of marriage. The first of them belongs to the classical lawyer Modestine; it is placed in Justinian's Pandects L. 1 D. 23, 2. Modestinus. Nuptiae sunt conjunction maris et feminae et consortium omnis vitae, divini et humani juris communication. The second definition of marriage is given by the compilers of the Institutes of Justinian: pr.1 J. 1? 9 Nuptiae sive matrimonium est viri et mulieris conjunction, individuam consuetudinem vitae contiinens. Both of these definitions are much more suitable for the ancient Roman marriage cum manu, when the wife transferred all her property to her husband, entered his family filia loco and received participation in his sacra, than for the new one, when, after the disappearance of the manus, the wife retained her separate property and remained a member of her former family and subject to her father. Individua vitae consuetude and consortium omnis vitae also do not harmonize well with the complete freedom of divorce, which Roman society enjoyed widely in the classical era and later. All consortium vitae in later Roman law is limited to the area of personal relations between spouses; but even here, it was not carried out in all respects.

The study of Roman marriage law and its institutions remains relevant to this day, since modern marriage law in European countries is also based primarily on considerations of legal kinship.

Roman marriage law is very complex: not every family, not every kindred relationship between a man and a woman was recognized by Roman law as a marriage, giving rise to legal consequences and associated with the legally recognized relationships of the participants in this union.

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

Chapter 1. The concept of family and marriage according to Roman law

1.1 The concept of family according to Roman law

A family is formed through marriage. The classical jurist Modestine defined marriage as “the union of a man and a woman, the union of all life, the community of divine and human law.” This idealistic interpretation of marriage did not correspond to the real state of affairs: even in the classical period, a woman was far from being an equal partner with her husband. According to O. Omelchenko, this general understanding reflected the subordination of the regulation of marriage and family ties to legal norms of dual origin: as a manifestation of the requirements of “human law”, a marriage union is subject to the provisions of civil law; as a manifestation of the requirements of “divine law”, a marriage union must meet the highest prescriptive requirements moral and religious nature, preconditioned by human law.

In pre-Justinian law, two types of marriage were distinguished, which took place in different forms, gave rise to different property and personal relations between the spouses and even the unequal legal status of the mother in relation to the children, and ended in different ways.

The first type was marriage cum manu mariti, that is, marriage with husband's authority, by virtue of which the wife came either under the authority of her husband or under the authority of the householder, if the husband himself was a subject. Entering into such a marriage inevitably meant capitis deminutio of the wife: if before marriage the wife was persona sui iuris, then after marriage cum manu she became persona alieni iuris. If before marriage she was in potestate of her father, then, having entered into this type of marriage, she fell under the authority of her husband or his paterfamilias, if the husband was under the authority of his father, and became an agnate of the husband's family.

Creating a different system of relations between husband and wife, marriage cum manu and marriage sine manu differed sharply from each other in the order of conclusion and termination. Marriage cum manu required the observance of certain rituals; it was a formal act. Marriage sine manu was an informal act. This type of marriage was considered as a certain factual state: certain legal consequences were associated with it. It is clear that the procedure for terminating sine manu and cum manu marriages was different. The first could be terminated not only by agreement of the spouses, but also by the free will of one of the parties. Divorce in a cum manu marriage could only occur on the initiative of the husband.

The basic principles of sine manu marriage had a negative impact on the life of Roman society. In an effort to paralyze the instability of marital relations and the abuse of freedom of divorce, Augustus introduced a number of significant changes to family law. Criminal liability for violation of marital fidelity was established, and certain property restrictions were introduced for men aged 25 to 60 years and for women aged 20 to 50 who were not married and had no children. These and some other measures did not shake the basic concept of sine manu marriage as a freely established and freely terminated union of husband and wife. The displacement of the ancient marriage cum manu by this concept is one of the most interesting features of Roman marriage law.

1.2 Conditions for marriage

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 paterfamilias alone. The groom expressed his will if he was persona sui iuris and needed the consent of the guardian, auctoritas tutoris.

However, a different view gradually emerged: for a person to enter into marriage aliieni iuris, one must first of all have his consent and, along with it, the consent of the paterfamilias of the bride and the consent of both the paterfamilias of the groom and the person under whose paternal authority the groom may end up with the death of the paterfamilias. Thus, consent to the marriage of a grandson is given not only by his paterfamilias, the grandfather, but also by the father, subordinate to the patria potestas of his father, to whom the son has the 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 an agnatic family and gives consent to the bride of her paterfamilias.

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 his consent to the children's marriage not because he was the father, but because he was the paterfamilias, the bearer of paternal authority.

The third condition for entering into a Roman marriage is the presence of ius conubbii among the spouses. The obstacle to marriage due to 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, until Iex Canuleia (445 BC), marriages between patricians and plebeians were not allowed. Before the first marriage law of Augustus, Iex Iulia (18 BC), marriages of freedmen with freeborns were not allowed, and after the law of Lulia, marriages were not allowed with members of the senatorial class.

During the period, property in a direct line also became an obstacle to marriage without limiting degrees, and under Christian emperors - and collateral 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 Lex Iulia de adulteriis prohibited marriages between the adulterous spouse and his accomplice.

1.3 Marriage in Roman law

Marriage was usually preceded by betrothal (sponsalia). In ancient times, the betrothal of persons alieni iuris was carried out by their patres familias without the participation of the spouses. Later, the betrothal was performed by the bride and groom with the consent of both paterfamilias. The betrothal took place in the form of two stipulations (item 433): according to one, the paterfamilias of the bride was obliged to hand over her to the groom, and according to the other, he was obliged to accept the bride as a wife, and in the most ancient times it could be in the form of a unilateral stipulation, according to which only the paterfamilias of the bride was obliged to hand it over to the groom, who did not assume any responsibilities and then had the right to terminate the marriage by unilateral expression of his will.

Marriage in Rome was concluded informally: it was enough to express the consent of the spouses (undoubtedly, with the presumption that all the conditions for a legal marriage were present) and take the bride to the groom’s house. If the marriage was concluded cum manu mariti, then to establish the power of the husband it was necessary to perform certain formal acts (at the same time, ancient Roman law knew three ways to establish manus: confarreatio, coemptio, usus).

The main point of the marriage itself, which gave rise to all the consequences of a personal and property nature provided for by law, was recognized as the removal of the wife to the husband’s house; all other ritual procedures only symbolized the conclusion of marriage, but were not considered formal conditions for the onset of marriage. With the development of law, there was a process of withering away or weakening the role of old forms of marriage. Parallel to this was the establishment of the informal consummation of marriage through a simple agreement, which, however, had to be followed by a deductio feminae in domum nuptias.

Ways to establish manus.

The most ancient Roman law knew three ways to establish manus, which at that time was inseparable from marriage: a) confarreatio, b) coemptio, c) usus.

1) Confarreatio, which a number of historians consider a patrician form of marriage, according to some (Girard, Post) never became accessible to the plebeians, was a religious rite. The name of the ceremony comes from panis farreus, a special bread that was eaten by the newlyweds during the marriage ceremony. And then they sacrificed it to Jupiter. The ceremony was performed certis verbis in the presence of priests - pontifex maximus and flamen Dialis and 10 witnesses, perhaps representing. The oldest 10 curiae (of this tribe). Only human. Born from marriage. The prisoner reg confarreationem, and being in such a marriage. Could occupy the positions of rex sacrorum and flamen Dialis.

2) Coemptio is secular and. is thought to be a predominantly plebeian form of marriage. This “imaginary” purchase of the wife by the husband was. Probably. A relic of the original purchase. It was produced in the same forms in which the most valuable things were purchased, namely land and slaves, and rights were established over persons in mancipio, namely in the form of mancipatio. True, the words that are spoken are different from the words. Pronounced when purchasing in the proper sense, however, in other respects it is in the form of purchase. According to the description given by Guy of this form of marriage, as well as individual comments by Cicero and other writers, coemptio is presented as follows:

In the presence of five witnesses and a weighmaster. Libripens, who participated in every mancipatio (p. 196), as well as the paterfamilias of the bride, as well as the groom, if he is persona alieni iuris, the groom asks the bride: an tu mihi materfamilias esse veils and, having received an affirmative answer, he himself answered in the prescribed words to her corresponding question, also asked in precisely defined words. The bride's answer apparently read: ubi tu Gaius, ibi ego Gaia (Cicero, Pro Murena. 12.27). Then the groom pronounced the words prescribed for making any purchase by mancipatio and handed over to the paterfamilias of the bride, in the form of the purchase price, an ingot of metal, supposedly weighed by a weigher.

3) Usus was a unique application of the institution of acquisitive prescription to the field of marriage relations.

Of these three forms of marriage, usus was the first to disappear. If usus still existed in the time of Cicero, then Guy already speaks of it as a form, partly abolished by law, partly simply forgotten. Apparently, at the beginning of the 1st century. AD Marriages per confarreationem were also rare. At least Gaius, as well as Tacitus, report that in 23 AD. AD a law was passed by virtue of which, in order to encourage per confarreationem marriages, not secular, but only religious manus (unity of worship) began to be associated with them, which was sufficient for persons descended from such a marriage to be high priests ( Tacitus, Annales. 4. 16). However, with such a limited range of action, the confarreatio continued to exist until the fall of paganism.

Coömpptio apparently existed back in the time of Gaius (1.113.114). It is less certain that it was considered an active institution by jurists of the 3rd century, despite mentions of it by Papinian and Paul (Girard).

In parallel with the withering away or weakening of the role of old forms of marriage, there was a process of approval of informal marriage through a simple agreement of the spouses (consensus facit nuptias - marriage is accomplished by agreement) (D. 35.1. 15), which should, however, be followed. It is necessary to follow the deduction feminae in domum mariti. That’s why he pointed out: vir absens nubere potest, femina absens nubere non potest (Sent. 2. 19. 8).

1.4 Circumstances ending a marriage

Marriage was recognized as insignificant: between relatives in the direct line, as well as between those lateral relatives, at least one of whom is related to a common ancestor in the first degree of kinship. Similar rules applied to in-laws. In addition to the stated conditions for the legality of marriage, some specific requirements were also presented. For example, a provincial magistrate could not marry a citizen of that province.

A marriage concluded in accordance with all legal requirements was terminated, also only on legal grounds. Thus, except for the death of one of the spouses, the marriage ended:

1) Capitis deminutio maxima of one of the spouses, i.e. by turning him into slavery, for slaves did not have ius conubii. Moreover, if the spouse captured and enslaved then returned to Rome, then by virtue of postliminium (paragraph 108) it was believed that the manus never ceased. Marriage sine manu, as some only factual, but not legal relationship, was considered terminated, for postliminium was applied to res iuris; however, the marriage was considered to continue throughout if both spouses were in captivity together.

2) Capitis deminutio media, i.e. loss of the right of citizenship, for non-citizens, except latini veteres, also did not have ius conubii.

3) Capitis deminutio minima, i.e. a change in the family status of one of the spouses, which established such a degree of agnatic relationship with the other spouse that marriage would be impossible, for example, the paterfamilias adopted the husband of his daughter without first freeing her from patria potestas.

4) By the will of the husband or his paterfamilias in marriage cum manu; by the will of the husband or wife, or by their agreement in marriage sine manu.

A sine manu marriage could be terminated by the will of one of those persons whose consent was required for the marriage to take place (clause 139). Freedom of divorce was, as already said, one of the fundamental principles of Roman marriage law. And, despite the multitude and divorces at the end of the republic and during the empire, despite the fact that divorces contradicted the teachings of the Christian Church on marriage, the freedom of divorce was never abolished or even limited, except for the disadvantageous property consequences of divorce for the spouse , on whose initiative or fault the marriage is terminated by divorce.

Entering into a second marriage after the termination of the first did not encounter any restrictions either during the period of the republic or during the period of the principate.

Divorce in the classical era was free and allowed both by mutual consent of the spouses (divortium) and by unilateral declaration of renunciation of marriage (repudium). Freedom of divorce was one of the principles of Roman marriage law. And, despite the many divorces at the end of the republic and during the empire, despite the fact that divorces contradicted the teachings of the Christian Church on marriage, the freedom of divorce was never abolished or even limited, except for a number of property consequences for the spouse , on whose initiative or fault the marriage was terminated by divorce.

Chapter 2. Types of marriage according to Roman law

marriage roman law divorce

2.1 Types of marriage according to Roman law

Until Justinian, Roman family law distinguished between matrimonium iustum, a legal Roman marriage between persons with ius conubii, and matrimonium iuris gentium between persons without such right. Concubinage should be distinguished from marriage - permanent (and not casual) cohabitation of a man and a woman, permitted by law, but not meeting the requirements of a legal marriage. Concubina did not share her husband's social status; children from concubina did not fall under his patria potestas. Despite the fact that the Roman family was generally monogamous, a man in the Republican era could be legally married to one woman and at the same time in concubinage with another. In pre-Justinian law, two types of marriage were distinguished, which took place in different forms, gave rise to different property and personal relations between the spouses and even the unequal legal status of the mother in relation to the children, and ended in different ways. The first type was marriage cum manu mariti, that is, marriage with husband's authority, by virtue of which the wife came either under the authority of her husband or under the authority of the householder, if the husband himself was a subject. Entering into such a marriage inevitably meant capitis deminutio of the wife: if before marriage the wife was persona sui iuris, then after marriage cum manu she became persona alieni iuris. If before marriage she was in potestate of her father, then, having entered into this type of marriage, she fell under the authority of her husband or his paterfamilias, if the husband was under the authority of his father, and became an agnate of the husband's family.

The second type of marriage is sine manu mariti, in which the wife remained subordinate to the previous householder or was an independent person. Outwardly, this type of marriage is similar to concubinage, but, unlike the latter, it had the special intention of founding a Roman family, having and raising children. The marriage of a sine manu had to be renewed annually. Having lived in her husband's house for a year, the wife automatically fell under his authority - by prescription. The Law of the XII Tables determined that a woman who did not want her husband to establish power 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 tenure of her. It is impossible to give an exact answer to the question of when and how free marriage began to pave the way for itself, when and how this first and extremely important in its consequences breach was made in the formidable edifice of power of the paterfamilias. There is no doubt that there was a time when manus and marriage coincided. Creating a different system of relations between husband and wife, marriage cum manu and marriage sine manu differed sharply from each other in the order of conclusion and termination. Marriage cum manu required the observance of certain rituals; it was a formal act. Marriage sine manu was an informal act. This type of marriage was considered as a certain factual state: certain legal consequences were associated with it. It is clear that the procedure for terminating sine manu and cum manu marriages was different. The first could be terminated not only by agreement of the spouses, but also by the free will of one of the parties. Divorce in a cum manu marriage could only occur on the initiative of the husband.

A valid marriage union presupposed mutual rights and obligations of the spouses, both personal and property. The inequality of partners within a Roman marriage was expressed in the fact that the wife had the majority of mandatory demands, while the husband was given significant rights in relation to his wife.

Personal and property relations between spouses were deeply different in a cum manu and sine manu marriage.

In a cum manu marriage, the wife, having become a legal stranger to her old family, is subject to the power of her husband, which in principle is no different from the patria potestas of the father over his children. The husband can reclaim his wife who left the house using a claim similar to vindication. He can sell her into bondage and has the right to impose any punishment on her, including the deprivation of her life. Just like slaves and children, the wife is deprived of legal capacity in the field of property relations. All the wife’s property and, conditionally, her labor force passed absolutely to the husband and became the property of the husband at the time of marriage. Everything she possesses during the marriage belongs to her husband. Such a powerless position of the wife was softened by Roman customs and traditions in the field of family relations. For example, customs obliged the husband not to impose punishment on his wife without listening to the advice of relatives on this issue.

A sine manu marriage did not change the wife's legal status. She remains in patria potestate if she was subject to paternal authority before marriage. If she was a persona sui iuris before marriage, then after marriage she remains a persona in her own right. It is clear that the property that belonged to her before marriage, if she was persona sui iuris, remains her property, and everything that she acquires during marriage belongs to herself. That is, in a sine manu marriage, the principle of separation of property was in effect. The costs of living together fall on the husband, but he has the right to dispose of the income that the wife’s property brings. However, the husband did not have the right to alienate this property without the special permission of the wife (apparently, if she is persona sui iuris) or her former landlord. Former relatives had the right not only to present demands to the husband for the restoration of property, but even claims for abuses in its management. The wife has the right to enter into any property transaction with her husband. Only gifts between spouses were prohibited. As not possessing ius commercii, she could not independently dispose of her property in economic terms. The wife retained the passive right to act as a participant in civil circulation. Responsibility was assigned to spouses separately, with the exception of cases of confiscation of property for criminal offenses. Note that over time, this complete legal separation of spouses in a sine manu marriage begins to soften both in personal and property relations.

Regardless of the form of marriage, two categories of marital property had a special legal status: dowry (dos) and marriage gifts (dos propter nuptias). Right there.

The term dowry refers to things or other parts of property provided to the husband by the wife, her landlord or a third party to alleviate the financial difficulties of family life. In the ancient republican period, when marriages were almost always cum manu, there was no special regulation of the legal status of the dowry. Therefore, if there was no special agreement on this issue, then the dowry was not separated from all other property brought by the wife and became the property of the husband. As sine manu marriages were established, a special legal regime was established for the dowry as property transferred to the husband. About two centuries BC. e. It became common to enter into an oral agreement, according to which the husband accepted the obligation to return the dowry in the event of termination of the marriage.

In the classical period, the dowry received special regulation. O. Omelchenko claims that there was a special document on the transfer of the dowry, which should have contained conditions and reservations regarding the fate of the dowry upon termination of the marriage (whether it goes to the husband after the death of the wife, after the death of the husband to the wife, the limits of possible deductions from the value of the dowry, etc.). p.) In case of termination of marriage, the dowry is subject to return. If, when establishing a marriage, an agreement was concluded on this matter, a claim for the return of the dowry was based on it. This was a strict claim, and the husband returned the dowry, unconditionally and in full. If there was no special agreement, the praetor gave the wife a claim. It was a bonae fidei suit; it was given to the wife, but not to her heirs, and the husband had the right to retain a share known to him for the maintenance of the children remaining with him and other needs.

Under Justinian, the issue of dowry return was simplified through the merger of the two previously named claims. Now, regardless of whether the corresponding agreement was concluded, the wife and her heirs now receive a claim for the return of the dowry, according to which the dowry is transferred in full, but minus the amount of necessary costs. Right there.

Marriage gifts were, as it were, a “dowry in reverse”; it was a gift to the wife from the husband, according to their social position during the marriage, with which the wife was, as it were, provided in case of widowhood. The making of marriage gifts was required by the rules of public decency, although the parties could not claim the absence of such. At first, this gift was made before marriage (since gifts between spouses were prohibited) and therefore was called a prenuptial gift. Justinian allowed this donation to be made during marriage, and it became known as donatio propter nuptias. The size of this property corresponded to the dowry. During the marriage it remained in the ownership and management of the husband; in the event of divorce due to the husband's fault, it passed to the wife. The contract often provided for the wife's right to demand the release of this property in the event of her husband's death.

Conclusion

After analyzing the sources of Roman law, I concluded that marriage is “the union of a man and a woman, the union of all life, the community of divine and human law.” A proper Roman marriage (in the classical era) could consist of two specific forms: ritual (cum manu mariti - or, literally, “marriage with a hand”) and informal (sine manu mariti - “marriage without a hand”).

The differences in these two forms were significant for property relations in the family and for the fate of the woman in the event of marriage termination.

In the Christian era, marriage began to take place through a church procedure, but all other requirements for registering a marriage were preserved.

A marriage concluded in accordance with all legal requirements was terminated, also only on legal grounds. These were the death of a spouse, a statement of renunciation of the marriage union - divorce, the loss by a spouse of his civil legal status due to a change in class status (especially the loss of freedom) or a change in citizenship. Roman marriage allowed the divorce of spouses (in the Christian era, divorce was gradually prohibited, and the grounds for ending a marriage were determined primarily by the requirements of church law).

A wife in a proper marriage followed the class and civil status of her husband. Her status within the family was subordinate: she was equated, as it were, with a daughter, and her husband acquired the power of a householder over her.

Thus, over the centuries, we see that the law pays attention to issues of marriage and family relations, which regulates the relationship between a man and a woman. Family law is the basis of the state and is designed to protect its interests.

Bibliography

1. XII tables // Chernilovsky Z.M. Reader on the general history of state and law. M., 1996. S. 261 - 272.

2. Guy’s Institutions // Chernilovsky Z.M. Reader on the general history of state and law. M., 1996. S. 273 - 281.

3. Khvostov V.M. Roman legal system. Textbook - M.: Spark Publishing House, 1996. 522s.

4. Omelchenko O.A. Roman law: Textbook. Second edition, corrected and expanded - M.: TON - Ostozhye, 2000 - 208 p.

5. Roman private law / Ed. I.B. Novitsky and I.S. Peretersky. M., 1996.

Introduction

1. Historiography of family and marriage in Ancient Rome

1.1. Marriage among the Romans before the emergence of law

1.2. Marriage in Roman law

1.3. Marriage among the Romans under Augustan law

2. Forms of conclusion and termination of marriage

2. 1. Forms of marriage

2.2. Forms of termination of marriage

Conclusion

Bibliographic list of references

Roman marriage law is very complex: not every family, not every kindred 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) is “the union of a man and a woman, the union of all life, the community of divine and human character.” This general understanding, formulated by the classical lawyer Modestine, reflected the subordination of the regulation of marriage and family ties to legal norms of dual origin: as a manifestation of the requirements of “human law”, the marriage union is subject to the establishment of civil morals (equally public and private), 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 character. 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. Until the formation of the Roman Empire, Roman family law distinguished between matrimonium iustum, a legal Roman marriage between persons with ius conubii, and matrimonium iuris gentium between persons without such right. Concubinage should be distinguished from marriage - permanent (and not casual) cohabitation of a man and a woman, permitted by law, but not meeting the requirements of a legal marriage. Despite the fact that the Roman family was generally monogamous, a man in the Republican era could be legally married to one woman and at the same time in concubinage with another.

1.1.Marriage among the Romans before the emergence of law

The memory of the Roman people retains no trace of the period preceding the establishment of the family. Since we know anything about the Romans, we find that they have already firmly established patriarchal system, which is based on monogamous family with an absolute householder at its head, whose power (originally bearing the general name manus) unites all the elements of the family into one strong whole.

This patriarchal family cum manu over the wife was established through marriage in a threefold form.

The first of these forms is confarreatio. This is a religious act; it is performed in the presence of 10 witnesses, who are considered to be representatives of 10 curiae, with the participation of priests (pontifex maximus and flamen Dialis) and consists of a number of different sacred rites, accompanied by “certis et solemnibus verbis” “clear and solemn words.” Among these rituals, the central place is occupied by the consecration and eating of special bread by the bride and groom - panis farreus, from which the form itself got its name.

Second form - coemptio, i.e., purchasing a wife from her paterfamilias or from her guardian. Like any purchase at that time, it is made in the form of mancipatio: in the presence of 5 witnesses and a weigher (libripens) with scales, the groom pronounces the appropriate formula and then hands over the metal to the bride's landlord. But, apparently, this act of mancipatio was preceded by an exchange of questions about consent; first the groom asked the bride “an tu mihi materfamilias esse velis”“Do you want to be the mother of my family?” and received an affirmative answer from her; then she asked the same question. Probably these mutual answers of agreement were also given in well-known, ritually sanctioned words; Apparently the bride's usual phrase was: "ubi tu Gajus, ibi ego Gaja". But, in any case, the legal aspect of the act lay not in these marriage rites, but in the act of mancipatio. It is quite possible that at an earlier time coemptio was a genuine real purchase of a wife, but very early on it became a simple form - imaginaria venditio (imaginary sale).

The historical relationship between these two forms is unclear; Many scientists consider confarreatio a specifically patrician form, and coemptio a form that arose among the plebeians and only later became common. They even think that confarreatio has forever remained inaccessible to the plebeians.

In addition to these two forms, manus over woman, and therefore family, could be established usu“use”, i.e. actual marital cohabitation for a year. We have here an application to family relations of the property law institution of prescription: just as possession of a thing for two years for real estate and one year for ceterae res turned into property, so here cohabitation for a year gave the husband manus over the wife. In its most ancient application, usus probably had as its goal to sanction a marriage concluded with some form of defect, or marital cohabitation that arose completely informally, for example, through abduction.

A marriage that arose in one of the above ways is marriage cum manu: the wife, both in personal and property terms, falls under the authority of the husband (or his paterfamilias), takes the place of the daughter - filiae locum optinet (Gai. I. 111). She is entirely part of his familia and becomes the agnate of both himself and all his relatives. At the same time, she finally breaks all agnatic ties with her former family, becomes legally alien to her parents, brothers, etc., with all the consequences of such alienation (loses inheritance rights, etc.). As filia, she is subject to the authority of her husband with all the attributes of its absoluteness.

Only such a strictly patriarchal marriage cum manu was known to the Romans in ancient times.

During the era of the creation of Roman law, it began to emerge marriage of a different nature. The laws of the XII tables, sanctioning the establishment of manus through usus, say at the same time that a wife can prevent the establishment of manus, interrupt the course of prescription by removing her husband from the house for three nights - usurpatio trinoctio .

Thus, marital cohabitation will continue throughout life, with the only difference from an ordinary marriage being that the wife will always be free from the power of her husband, will be legally a stranger to him, maintaining her previous position in the old family.

Of course, from a strictly legal point of view, such cohabitation should not be considered a marriage in the proper sense; nevertheless, Roman law already recognized it as an early era matrimonium justum“legal marriage”: children from such cohabitation are considered not illegitimate children, but legitimate children; they are subject to the power (patria potestas) of the father, they enter, like agnates, into his family, etc. The wife, the mother of these children, is uxor her husband, and not a concubine, but only she is not subject to manus mariti, stands in marital cohabitation next to her husband, as a free and independent being.

The appearance of this new marriage marks a major turning point in Roman history. The first breach was made in the impenetrable unity of the old Roman patriarchal family: if previously the paterfamilias covered with himself all the members of his family, over whom he ruled with all legal unlimitedness, now in a sine manu marriage the wife came out of this patriarchal shell and stood next to her husband as an individual independent. At the same time, for the first time the question arose about the legal definition of the relationship between these two independent individuals. If earlier, in a cum manu marriage, family relations represented only a type of property (manus is fundamentally equal to dominium), then only in a sine manu marriage did relationships of a special, family nature appear for the first time.

The appearance of marriage sine manu did not immediately destroy marriage cum manu; the new form at first stands only next to the old one and only gradually comes to the fore, defeating the old one with its inner strength. For a long time, both types of marriage existed side by side, but already in the second half of the republic, sine manu marriage became predominant. The old forms of establishing manus are gradually dying out.

But already at the beginning of the Roman Empire, great difficulties were encountered in this regard: the circle of possible candidates narrowed more and more; apparently manus mariti discourages wives from this form.

In view of this, in 23 AD. a law was passed exempting confarreatio from this civil consequence, and in this form (without manus) confarreatio continued to occur until the complete disappearance of paganism. Finally, coemptio also persists even in the era of classical lawyers (Guy speaks of it as a practical form), but no longer as a way of establishing a real marriage, but as coemptio fiduciarea in order for a woman to acquire certain benefits - for example, to be released from legal guardians and to replace them with a guardian of her choice (tutelae evitandae gratia: a woman marries fictitiously, as a result of which the guardianship of the agnates over her is terminated; after that, her fictitious husband remancipates her to the one whom she would like to have as her guardian; this latter emancipates her in turn, but, as a manumissor, remains her guardian.

However, from the 4th century AD. coemptio is no longer found in this artificial form.

Thus, already in the era of classical lawyers, the only type of real marriage is marriage sine mani. Its historical origin explains everything its legal nature. Having arisen from simple marital cohabitation to avoid manus, a new marriage is also concluded in later times by simple marriage agreement, followed by bringing the wife to her husband’s house - deductio in domum, - accompanied, of course, by various everyday rituals, but all these rituals have no legal significance.