An Assignment

On
Marriage under Roman Law

Course Title: Roman Law

Course code: LL.B-1207

Submitted To
Talukdar Rasel Mahmud
Adjunct Faculty
Department of Law
North Western University
Khulna

Submitted By
Mst: Shayla Akter
ID NO: 20201025106
1st Year 2nd Semester
North Western University, Khulna
Department of Law

North Western University

Date of submission: 18 September, 2020
 Introduction:- Marriage in ancient Rome was a strictly monogamous
institution: a Roman citizen by law could have only one spouse at a
time…Marriage had mythical precedents, starting with the abduction of
the Sabine Woman, which may reflect the archaic custom of bride
abduction.Manus was acquired in ancient law by one or other of the
following nodes of marriage recognized as justiaenuptiae:- (1);
Confarreation- It was a religious ceremony performed in the presence of
the chief priests of the state religion and accompanied by usages which
were of great antiquity., Orginally only particians cloud avail themselves
of this form of marriage.(2) Coempto- It was the civil marriage. This
form of marriage was meant for the plebeians and existing side by side
with the confarreation from of marriage. (3)- Usus- The thired form in
which manus was created was usus, that is a short of usucapio or
prescription.So it was fixed that if she absented herself for three nights in
succession by prescription. The discontinuity in the possession was called
usurpation trinocti and manus could not be acquired in such a case.

 Bacground:- Marriage in ancient Rome:- Marriage in ancient Rome was

a strictly monogamous institution: a Roman citien by law could have only
one spouse at a time. The practice of monogamy distinguished the Greeks
and Romans from other ancient civilizations, in which elite males
typically had multiple wives.Greco-Roman monogamy may have arisen
from the egalitarican of the democratic and republican political of ancient
Roman culture that was embraced by early Christianty, which in turn
perpetuated it as an ideal in later Western culture. Marriage had mythical
precedents, starting with the abduction of the Sabine Woman, which may
reflect the archaic custom of bride abduction. Romulus and his band of
male immigrants were rejected conubnes. According to Livy, Romulus
and his men abducted the Sabine maidens , but promised them an
 honorable marriage, in property, citizenship , and children.These three
benefits seem to define the purpose of marriage in ancient Rome.
The word matrimonium, the root for the English word “ matrimony”, defined
the institution’s main function.Involving the mater (mother) , it carried with it
the implication of the man taking a woman in marriage to have children.This
was the idea conventionally dhared by Romans as to the purpose of marriage,
which would be to produce legitimate children; citizens producting new
citizens.

 Effects of marriage:- In marriage with manus the wife ceased to be a

member of her old family and became a member of her husband’s agnatic
family.If the husband was under the potestas of the paterfamilias, she
would fall under him. If the husband was sui jurist or himself a
paterfamilias, she would go under his manus (control). In other words she
suffered a complete change of legal status of the kind which the Roman
called the paterfamilias , and if he dies intestate she will not be entituled
to share with her brothers and sisters. In marriage without manus her
agnatic relationship remained unchanged her position as one of the heirs
of the paterfamilias. After the disappearance of the tutela perpetua the
woman, although married had a complete legal status of her own, and
could acquire property , enter into obligations and bring actions just as a
man could.

 Conventions of Roman marriage:- Under early Roman law , the oldest

living male was the head of a family , or pater familias, and had children
and , to a lesser extent, his wife . His hussehold was thus understood to
be under his manus. He had the right and duty to seek a good and useful
match for his children , and might arrange a child’s betrothal long before
he or she came of age. To further the interests of their birth families, sons
 of the elite should follow their fathers into public life. And daughters
should marry into respectable families . If a daughter could prove the
proposed husband to be of bad character, she could legitimately refuse
the match.

 Origin of patria potestas:- The paternal power was acquired by

(1)Justiae nuptiae (marriage).
(2) legitimation.
(3) adoption, and
(4) arrogation. We may now consider the topics in order.
Justice nuptiae (marriage) – Justiae nuptiae is defined by Justinian as the lawful
union of men and woman whereby they consented to lead an undivided
life.Marriage according to Roman Law, was a contract by which a man and
woman entered into a mutual engagement in the form prescribed by law to live
together as husband and wife suring the remainder of their lives. The husband
was called uir and the wife war.
Forms of marriage:- In early Rome there were two forms of marriage widely
different in their effects upon the position and property of the wife: (1) marriage
with manus and (2) marriage without manus. Under the Empire the normal
marriage.

 Marriage laws:- Early Roman law recognized three kinds of marriage :

confarreatio, symbolized by the sharing of spelt bread (pains farreus);
comptio, “ by usus (habitual cohabitation). Patricilans always married by
confarreatio, while plebeians married by coemptio or uses: in the latter, a
woman could avoid her husband’s legal control simply by being absent
from their shared home for three consecutive nights, once a year .Among
elite familiesd of the early Republic, manus marriage was the norm; the
bride passed from the manus(“hand”) of her father to the manus of her
 husband, remaining under one or another from of male potestas
(power).Manus marriage was an institutional unequal relationship. By the
time of Julius Caesar, it was largely abandoned in favour of “free”
marriage; when a wife moved into her husband’s home, she remained
under her father’s lawful authority ; but she did not conduct her dally life
under his direct scrutiny.So total was the law”s separation of property
that gifts between spouses were recognized as conditional loans; if a
couple divorced or even lived apart, the giver could reclaim the gift.

 Kinds of dos.—There were three kinds of dos viz,

(1)dos profecticia.—When the marriage portion was provided by the father or
other paternal ancestor, who were under a legal duty to the woman to provide
dowry. It was called dos profectiia.
(2) Dos adventicia.—When the marriage portion was given by the wife from
her own property, or by any thired person.It was called dos adventicia.
(3) Dos recepticia.—When the marriage portion was given by a third party on
the understanding, that it was to be returned to him on the dissolution of the
marriage ,it was called dos recepticia.
Constitution of dos—A dos might be constituted in one of the three ways(1) It
might be handed over to the husband at the time agreement was made. (2) The
bride or her paternal ascendant might bind themselves to give .(3) It might
simply rest on a solemn promise.

 The age of marriage:- One common belief about the Renaissance is that
children, especially girls, marriaged young. In some noble houses
marriages were indeed contracted at a young age, for reasons of property
and family alliance, but in fact the average age of marriage was old-in the
middle twenties.
Marriage statistics indicate that the mean marriage age for the Elizabethan and
Jacobean eras was higher than many people realize. Data taken from birthdates
of woman and marriage certifictes reveals mean marriage certificates reveals
mean marriage ages to have been as follows:
1566-1619 17.0 years
1647-1719 29.6 years
1719-1779 26.8 years
1770-1837 25.1 years
The marriage age of men was probably the same or a bit older than that of
woman.(In 1619, it was about 23 for woman, 26 for men.) The age of contract
was 12 for a girl, 14 for a boy, but for most children piberty came two or three
years later than it does toda.
Oddly enough, three seems to be a period in the late sixteenth century when the
mean marriage age of woman in and around the area of Stratford-on-Avon
dropped as law as 21 years: the mean marriage age from 1580 to 1589 was
about 20.6 years, and it was this decade that Shakespeare, at the age of eighteen,
married Anne Hathaway.
The reason for late marriage among labourers and the middle class was simple
enough: it took a long time foe a couple to acquire enough belongings to set up
housekeeping, even in a room of their parents’ home.Young love, however
romantic , had to be kept in check if the two lovers were to survive in a world
where subsistence earnings would not purchase a roof over their heads and put
food on the table. Children of noble birth ran a great risk if they tried to marry
without the approval of their parents, since they would be left without
resources.Perhaps the caution of young Claudio in Much Ado About Nothing
has something to do with the fear of acting without permission: he is careful to
make sure that his loves one,Hero, is the sole heir to heir father’s estate ( see
1.1.242-243).
 Termination of marriage:- Marriage came to an end in the following
ways:- (1) By death of either party . (2) By either party becoming a slave
or ceasing to be a citizen. (3) In case of marriage in manum, by either
party undergoing capitis deminutio minima. (4) By divorce.

 Marriage in Ancient Egypt:- Getting married in Ancient Egypt (and

also in the other ancient civilizations) was an important business because
the family was the most valuable institution is social life next to the
theocracy itself. Genearlly, Ancient Egyptians have married inside their
social classes. The man was usally get married between the ages of 16
and 20, or as soon as he chooses potential craft with the aim to earn
money for his family .Woman usually married at the age of about 13
years,or immediately after the puberty. It was not uncommon for an old
man to marry a girl at puberty.Ancient Egyption had marriage and
betrothal ceremonies different compared to moderns.Unfortunately, there
in not too much information about these ceremonies, but from between
husband and father of the bride. The marriage contract consisted of the
date of the pharaohs rile, together within names there was occupation of
the husband and wife.At the end of contract, the scribe also sing together
within the names of the marriage wthnesses and finally the name of
settlement whome they belongs.Marriages in Egyptian royal house were
celebrated with as a great ceremony. Pharaoh often , of course for
political princesses. During the marriage ceremony, husband and wife
offered gifts to the gods. They also exchange gifts especially if he was
important person and if he was possibly foreign ally in following days.
Fathers often advised their married woman. Among Egyptian people in
villages, there was a gift foe a bride mentioned as ‘shepensemet’.
Shepensemet was probably gift to the brides father, as a exchange for
taking his daughter away from house. This word was often written aftera
 years of married woman and when she has given birth to one or more
children.The Egyptians loved the sensual pleasures. Their myths were full
sensual pleasures.

 The position of a woman in marriage:- Men and woman in Ancient

Egypt seem almost equal in marriage, and woman have enjoyed greater
rights, such as the right to dispose of property or intiation divorce. In the
Egyptian art, women were often depicted as supporting or encompassing
their husband, while husband and wife often call each other as “brother”
or “sister” , again , suggesting a relationship of equal. Hemet was usually
word in documents meeting female partner or wife and it was known
from the period of Old Kingdom of Kgypt. From the period of XVI
centuary BC, instead of :hemet” Egyptian more often used word ‘senet’
and “senet” was that word “ hemet” more often used as religious meaning
of wife.From the period of the Middle Kingdom of Egypt in marriage
contracts appears word ‘ hebsut’ and its suggest that this word was also
synonymous with word ‘hemet’ or wife. The words ‘ ankhet en niut’
along with word ‘ nebet per’ probably seems to marked married
woman.These words differ depending to wghere they appeared.
Ancient Egyptian learned to apply some techniques of pregnancy tests. The
pregnancy tests were described in papyrus. One test was taking the pulse,
investigate the color of the skin and condition of the woman, and another test
suggest to check the urine on pots of barly. Within this test Egyptians tried to
predict whether boy or girl will be born. The woman needs to urinate daily on
emmer wheat, and barley wheat . If sprouted first barley wheat, a woman will
give birth to a girl. The child would be male when the these plants did not
sprout at all, then woman probably was not pregnant.
  The donation propter nuptias:- The ecpression means a sonation after
marriage. It was a gift on the part of the husband as a kind wquivalent to
the dos. The object of donation propter nuptias was to secure a provision
for the wife in the event of her surviving the husband or in the event of
the marriage ending by a divorce through husband’s misconduct. The
husband’s ancestors were placed by statute under the same oblifation to
provide donation as the bridw’s ancestors were to provide the dos. By a
constitution of Justinain the amount of the sonatio had to equal to the
amount of the dos. The actual control and management of it belonged to
the husband during the marriage . Under Justinian the husband could not
alienate the immovavale part of the donation, even with his wife’s
consent and the wife was given a tactta hypotheca to secure.

 The consequences of marriage were—

1.The power of the father over the children of the marriage , which was a
completely new realtion, an effect indeed if marriage, but one which had no
influence over the relation of the husband and wife.
2. The liabilities of either of the parties to the punishments affixed to the
violation of the marriage union.
3. The relation of husband and wife with respect to property, to which head
belong the matters of Dos, Donatio inter virum et uxorem, Donatio propter
nuptias, &c.
In the latter Roman history we often read of marriage contracts which have
reference to Dos, and generally to the relation of husband and wife viewed
with reference to property . A title of ther Digest (23 4) treats , which might be
made either before or after marriage.
 Dos:- Dos was the property made over to the husband by or on behalf of
the wofe as a kind of contribution towards the experses of the new
household. It was considered to be the duty of a father to maintain his
daughter notwithstanding that she was married. But as it would have been
practically impossible to perform this duty day by day and week by week
when the daughter lived with her husband, the father once for all gave a
marriage portion to his means. Dos was usally the subject of prenuptial
contract ; but it might be commenced or increased after the marriage.
However, the constitutional of dos was not essential to the validity of
marriage. The dos in no way resembles our dower or dowry.

 Conclusion:- Marriage under Roman Law is a best act status created by a

simple pri.. The children , issue of such a union , are neither legitimi
matrimonial law.If the divorce was owing to the fault of the father, the
mother was entitled to the custody of the children, and the father was
obliged to maintain them. If neither party was in fault and the dissolution
of marriage resulted from mutual consent, the father took the custody of
the body, and mother of the girls.