Ancient Roman Marriage Law: Historical Analysis of Practices and Dissolution, Appunti di Diritto Romano

Scarica Ancient Roman Marriage Law: Historical Analysis of Practices and Dissolution e più Appunti in PDF di Diritto Romano solo su Docsity! Marriage in Roman law was conceived very differently from the way we conceive it today. In Roman society the marriage it was a private matter, which did not require any public validation and it was an not written act. A double contract wrote only if the bride had a dowry. For the Romans the marriage was essentially a civic duty, To which the good citizen conformed to perform two important tasks: to have children and to rulethe family. The love between husband and wife was not essential, if there was it was a random event and lucky. was not a requirement to treat well the wife . In 18 BC, to cope with the collapse of births and easy divorces, Octavian presents the famous "Lex Iulia de maritandis ordinibus" directed to rebuild society according to the strictest moral principles. This law established the obligation of marriage, forbidding senators unions with liberte and included a number of measures designed to increase the birth rate, establishing awards for larger families and fines for married couples without children. The law then puts a brake engagements to too long, establishing hard fines for the more clever that with continuous breakages were continually trying to circumvent the rule. Women, in particular, had to demonstrate that she had wanted at least three children, in which case they received equal rights with men. Augustus promulgated also the "Lex Iulia de pudicitia et de coercendis adulteriis" which it concerned the licentiousness and wanton luxury. were established serious financial penalties against adulterers. Its starting point was the desire to strengthen the family institution and the defeat output society by civil wars of previous years. In the Roman marriage law it is constituted with the stable coexistence of a man and a woman characterized by ‘affectio maritalis’ (it means to live together in union, only with your spouse), without the affectio there was concubinage. The way the constitution of marriage was then what we call a de facto union, and it began with no particular rituals, nor solemn acts. The marriage could have several corollaries, just think of marriage "cum manu" (the one where the wife ceased to be a member of her family of origin, and was subjected to the authority of the husband), or to "sponsali". -The Sponsali Spouses (if sui iuris) or their patres familias could promise themselves in marriage through "sponsio", a real oral contract with which you promised to take in marriage (in the near future) the other person. Originally born a legal obligation to fulfill, then the discipline is not mitigated representing more an obligation but a series of minor constraints such as exclusion from testifying against the future spouse, affinity constraints for relatives, returning gifts event of termination of the promise. the Roman marriage can be cum manu or sine manu: 1)The husband could acquire the manus on the wife following the celebration of particular wedding ceremonies (the confarreatio or the coemptio) or in any case if certain conditions existed (this is the case of the usus). The powers of the manus came to include the right to kill one's wife, as established by a law attributed to Romulus, in the event that he had committed adultery or had drunk wine. • Confarreatio :Among the nuptial rites with which the husband acquired the manus, the confarreatio, so called because the spouses offered a spelled focaccia to Giove Capitolino, is certainly the oldest, which the tradition traced back to Romulus. [12] This rite was reserved only for the highest social classes and required the presence of the Pontifex Maximus and the Flamen Dialis. For these reasons the confarreatio soon fell into disuse, replaced by other more practical rituals such as the coemptio. • The coemptio : it was nothing other than an adaptation of the mancipatio, the shop used in ancient times for the purchase of the most valuable things (res mancipi). Originally, it was, in effect, a form of celebration of marriage by shopping, as the etymology of the term itself seems to reveal (coemptio derives from cum, "con" and emptio, "purchase, purchase"). The plebeian father carried out a fictitious sale of his daughter, thus emancipating her, to her husband. The coemptio was therefore also accessible to the plebeians, to whom the confarreatio was instead precluded. However, when the confarreatio fell into disuse, the coemptio was often also used by the patricians. • The usus, on the other hand, was a form of marriage by usucapion. It was based on a verse of the XII tables, which established that movable things could be usucapite after a year. Thus, after a year of living together, the husband "usucapita" the manus on his wife. The uninterrupted cohabitation of a year for example of a commoner with a patrician was considered a legal marriage. In cases where one wanted to contract marriage without acquiring the manus, one used the institute of the trinoctis usurpatio (or simply trinoctium). The woman left the married home every year for three nights before the end of the usus expired so as to prevent the usucapion from being fulfilled. In the second century none of these three forms had survived. The first to disappear was the In ancient Romedivorce and assumes it was and could be done either by an agreement between the couple or volore of either partner. In any case there was no need for a precise motivation to proceeddivorceand it did not need to intervene judicial or state. Typically they constituted compelling reasons for a separation of the lack of children or the desire to pursue a relationship with another person. Usually everything was resolved in a matter related to the properties or goodsFor example, the husband was required to return his wife's dowry, unless you were if it were proven adultery by the woman. In this case the husband could keep for himself his wife's dowry in whole or in part. If he was the man to commit adulteryInstead did not suffer any damage. Among other things, if the children remained with the father divorce. The number of divorces in Rome began to increase from the first century. C. In most cases the decision to divorce was taken by her husband, but it was not uncommon that a woman decided to separate. We are in the practice of divorce in ancient Rome many differences compared to that which is being implemented in our society, especially in relation to the role and possibilities reserved to women. Faced with a certain freedom in proceeding to divorce it did not exist the concept ofequal opportunities which today stands at the foundation of many social policies. -The causes of dissolution of marriage were: 1 Death 2 Disappearance of the requirements: - End of coexistence / affectio - Emergence of kinship - Loss of citizenship 1 Repudiation, following the censor of customs and the influence of Christianity underwent temperaments (fines or loss of property rights related to marriage) so it was deemed lawful in these cases: - caustrale Life (priests / nuns) -Impotence -Scomparsa -Prigionia -Adultery -Gravi crimina: murder 1 mutual consent 2 Intervention of patres familias for aliens iuris (up to a certain age) As it regards the arrangements were no particular formalities, except in the Late Period expressing his intention in writing or before witnesses. Formalities, unconnected to the marriage relationship, were required for the corollaries to marriage such as the cessation of the hand to bring back the woman of belonging in the family. The formula of repudiation could be disparate but we bear witness to this: "Vade forsa! Res your tibi habeto! " Although the divorce was a very simple act to put into practice, it was taken very seriously because the romanistica conception of union man and woman was a social fact before the law, so much felt. A great diffusion of divorces occurred in Rome with the emanation by Augusto of the lex de ordinibus maritandis directed above all at restraining the decrease in births in the aristocratic class, without worrying about the divorces that could indeed be seen as the occasion for more assorted unions and prolific, and to prohibit the breaking of the engagement, an instrument used by most to escape the marriage. [7] If Augustus did not halt the divorce he was concerned, however, to give rules. Even the will of one of the spouses was enough to divorce him but the emperor established that this should take place in the presence of seven witnesses and that a freedman notified the interested party in writing. Subsequently the same Augustus wanted that the repudiated woman could, in the case that in the contract of marriage this had been neglected, to demand back his dowry by bringing a civil action (actio rei uxoriae), save the faculty of the judge to withhold in favor of the ex husband that part of the dowry that was used for the maintenance of the children left with him (propter liberos) and that for the damages that the woman had caused for waste (propter impensas), for ruberie (propter amotas) or for immoral conduct (propter mores) . The protection of the woman's dowry had always been considered by Augustus in light of her policy of increasing birth rates: a divorced woman still in possession of her dowry could more easily remarry. But there was also an effect that had not been considered: in the sense that often the greedy husbands not to lose the dowry did not divorce but the institution of the family that maintained itself only for interest was irretrievably in crisis. Another consequence, even this deleterious marital spirit, as Orazio noted, was that the subjection, not only of the husband's economic status, to the woman with a rich dowry ("... with gifted regit virum coniunx") [8] forced him to to remain formally united but only until he divorced having found an even richer woman.