Roman Law and the Legal World of the Romans

Family Law

Before moving on, it is worth noting that there is evidence for a more conservative phase earlier in Roman history. During the archaic period, it appears that only a husband could initi ate divorce, and that he was expected to do so only because of moral “failings” on his wife’s part. Divorce for insufficient reasons led to financial penalties for the husband. Roman leg end traces the change in the classical system of free divorce (as described earlier) to a particular case in about 230 bc in which the divorcing husband got away without penalty, and new safeguards were felt to be needed. All the details of the story are suspect, but it does suggest that the change from the archaic system occurred quite early. As with divorce, so with the marriage itself; there were certain customary forms that were not legally required for legitimacy, but which had some legal significance. “Betrothal” (a formal engagement) was not required but seems to have been customary, at least among some classes. Technically, the agreement was between the would-be spouses, but in practice the parents (when alive) seem to have been closely involved. Betrothed persons were treated as married for certain purposes (e.g., killing your betrothed’s father was “parricide,” aggra vated familial murder), and this tendency grew over time. The engagement itself, however, was not enforceable, emphasizing again the importance of consent to Roman ideas of marriage. Dowry has already been mentioned, and though it was clearly not required for a valid marriage, it seems to have been so com mon as to be a good indicator of the intent to marry. There were conventional forms of wedding, most notably a formal

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