The Historical Jesus in Context

By Amy-Jill Levine; Dale Allison Jr. et al. | Go to book overview

19
The Law of Roman Divorce in
the Time of Christ

Thomas A. J. McGinn

Getting divorced was, from a legal perspective, easy for a Roman citizen, even by twenty-first-century U.S. standards. It was even easier than getting married in the first place, since divorce could be unilateral. There were no forms, no procedures, no lawyers—all that was really required was the wish of at least one spouse no longer to be married. There was no intervention by the state to regulate or even to make a record of divorce. In large measure, this was because there was relatively little to settle. The law kept spouses' property separate during marriage, at least in theory. Children as a rule remained with their father after dissolution of a marriage. The father might if he wished allow them to be raised by their mother, though they remained under his legally recognized paternal power (patria potestas).

Just as marriage itself was mainly a matter of agreement between the husband and wife (and those in whose potestas they stood, if applicable), so divorce demanded little by way of formality in principle. Practicality, however, suggested in both situations the desirability of some external manifestation of the wish to marry or divorce, and in the latter case, some of the legal experts known as jurists seem to incline toward a requirement that the spouse wanting a divorce notify the other of this wish, or at least attempt to do so. At stake was not just the existence (or not) of the marriage itself but questions concerning the legitimacy of children and the devolution of property.

The biggest complications in the Roman law of divorce concern the dowry. Though dowries were not just in the possession but in the actual ownership of husbands for the duration of the marriage, they often had to be returned by them upon divorce. Literary sources show that this was not always easy to do—often the capital was tied up in various investments, some of which might have to be relinquished at a loss. The larger the dowry, the bigger the complications, and the greater the leverage. So moralists decry marrying a woman with a large dowry. The threat, implicit or otherwise, of terminating the union in such cases was a potent one. The woman's superior position threatened to undermine a core ideal

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