Women and the Law in the Roman Empire: A Sourcebook on Marriage, Divorce and Widowhood

By Judith Evans Grubbs | Go to book overview

4

DIVORCE AND ITS CONSEQUENCES

IDivorce in classical law

Classical Rome had a very liberal divorce policy (as did Greco-Roman Egypt; see Part III). By the first century B.C.E., women who were not married with manus [see Chapter 1, Part II.B.] had the right to divorce their husbands unilaterally, and eventually the same right was enjoyed by women married with manus. Husbands had been able to divorce their wives unilaterally, particularly for adultery or other misbehavior, from a very early period [Treggiari 1991a, 441-6, 459]. Whether unilateral or by mutual agreement, divorce was an accepted fact of Roman life, and was subject to very few restrictions until the fourth century C.E. How frequent divorce actually was, and what percentage of divorces was initiated by wives rather than husbands, are unanswerable questions. Indeed, there is little information on Roman divorce apart from the legal sources, except for literature which focuses on the Roman elite in the late Republic and early Empire [Treggiari 1991b].

The title in the Digest on “Divorce and Repudiatons” (D.24.2, with eleven entries) is very short, especially compared to the title on marriage (D.23.2, with sixty-eight entries). Most of the legal sources we have for the first three centuries come to us filtered through the compilations made in the sixth century under the Christian emperor Justinian (the Digest and the Code of Justinian) which omitted passages that no longer had relevance or legal validity. By Justinian’s day, there were considerable restrictions on the right of either partner, especially the wife, to divorce unilaterally, and on the right to remarry someone else. Thus we can assume that divorce was much more frequently discussed by the classical jurists than the Justinianic corpus suggests. 1


ADefinition and causes of divorce

D.24.2.1 (Paulus): Marriage is broken by divorce, death, captivity or another kind of slavery affecting one of the two partners.

D.50.16.101.1 (Modestinus): It is said that there is “divorce” (divortium) between man and wife, but “repudium” seems to be sent to a fiancée. This refers not absurdly also to the person of a wife.

D.50.16.191 (Paulus): Between “divorce” and “repudium” there is this difference, that even a future marriage (i.e. a betrothal) can be repudiated. However, a fiancée is not properly said to have divorced, because it has been called “divorce” from the fact that those who separate go off into diverging directions.

-187-

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Women and the Law in the Roman Empire: A Sourcebook on Marriage, Divorce and Widowhood
Table of contents

Table of contents

  • Title Page iii
  • Contents v
  • Preface xi
  • Abbreviations xv
  • Glossary of Latin Legal Terms xvii
  • Acknowledgements xxiii
  • Introduction 1
  • 1 - The Status of Women in Roman Law 16
  • 2 - Marriage in Roman Law and Society 81
  • 3 - Prohibited and Non-Legal Unions 136
  • 4 - Divorce and Its Consequences 187
  • 5 - Widows and Their Children 219
  • Summation the Condition of Women: Rights and Restrictions 270
  • Bibliography 327
  • Index of Sources 337
  • General Index 343
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