Roman Law and the Legal World of the Romans

Roman Law and the Legal World of the Romans

might end a marriage, even if neither spouse desired that in the long run. Imagine one partner running out of the house, shout ing “I wish I’d never met you,” only to return the next day. Is it really better to imagine this as two marriages separated by a twelve-hour divorce than to look the other way and ignore the possible break? Third, the tight focus on consent ignored any interest the other spouse or the community at large might have had in giving some stability to marriage. If marriage is meant to have any value beyond keeping track of the children (and all the evidence suggests that it did for the Romans), then its potential fragility must have been seen as a problem. There were traditional phrases and forms to divorce, and the law encouraged the use of these, even if it did not actually require them. (For some late exceptions, see the discussion that fol lows.) Still, the basic matter was so clear that there were no divorce cases, as such, in court; anyone desiring a divorce was by that very fact divorced. A court deciding some other matter (say, the inheritance of a disputed child) might have to rule in passing on whether or when a divorce had already taken place, but no government institution was needed to create the divorce in the first place or to resolve the related matters we typically associate with divorce today. Since the two parties had separate property during the marriage, there was no general need for any special settlement at the time of the divorce. Of course, a court might have to decide factual questions of who owned what in the first place. Neither party could claim alimony or any share of the other’s future income. (Custody of children will be discussed later.)

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