No CrossRef data available.
Article contents
A Misunderstanding about Roman Divorce Law: the Meaning of ‘Praeter’ in Digest
Published online by Cambridge University Press: 11 February 2009
Extract
The extract from Paul's second book de adulteriis which is quoted at Digest 24.2.9 has been the source of much discussion about its implications for Roman divorce procedure. The text reads:
nullum divortium ratum est nisi septem civibus Romanis puberibus adhibitis praeter libertumeius qui divortium faciet. libertum accipiemus etiam eum, qui a patre avo proavo et ceteris susum versum manumissus sit.
- Type
- Shorter Notes
- Information
- Copyright
- Copyright © The Classical Association 1988
References
1 Mommsen, T., Krueger, P. and Watson, A. (edd.), The Digest of Justinian (Philadelphia, 1985)Google Scholar.
2 2.11.7, 3.1.10, 18.2.14.4, 24.3.25.4, 25.5.2.1, 32.46, 32.78.4, 33.9.4.6, 38.1.37.pr, 44.7.29.
3 Tr. D. MacCormick (in the Watson edition). At 3.1.10, the Watson edition translates it as ‘not in cases of’, at 33.9.4.6 ‘other than’ and ‘except’, at 38.1.37.pr ‘apart from’.
4 It is used with nihil in 18.2.14.4 and 32.78.4, with non in 44.7.29, and with inutilis erit in 25.5.2.1.
5 24.3.25.4 and 32.46.
6 D. 23.2.23.
7 ‘Über die Form der Ehescheidung bei den Römern seit der lex Iulia de adulteriis’, ZRG 5 (1866), 193–218, at pp. 197–9Google Scholar.
8 Juv. 6.146–8.
9 Brini, G., Matrimonio e divorzio net diritto romano, 3: Il diritto romano nel divorzio (Bologna, 1889Google Scholar; reprinted Rome, 1975), p. 75.
10 Basilica 28.7.15.
11 D. 24.2.9 is taken from Paul's commntary on this law, and Ulpian, in D 38.11.1.1Google Scholar says that the adultery law treated divorce as invalid nisi certo modo…factum sit.
12 The reasons for this view are best set out by Andreev, M., ‘Divorce et adultere dans le droit romain classique’, RHD 35 (1957)Google Scholar. It is adopted by, for example, Kaser, M., Roman Private Law (3rd ed., tr. R. Dannenbring, Pretoria, 1980), p. 295Google Scholar; Rousselle, A., ‘Concubinat et adultere’, Opus 3 (1984), 75–84, at p. 78Google Scholar; Longo, G., ‘Riflessione critiche in tema di matrimonio’, in ScrittiA. Guarino (Rome, 1985), 2357–83, at p. 2378Google Scholar; and Gardner, J., Women in Roman Law and Society (London, 1986), pp. 85–6CrossRefGoogle Scholar. Corbett, P., The Roman Law of Marriage (Oxford, 1930), pp. 228–39 argues at length but unconvincingly that all divorces were affectedGoogle Scholar. The main reasons for disbelieving this are the lack of legal or literary references to the new procedure and the continued possibility of confusion arising over whether or not a divorce had taken place such confusion would surely have been very unlikely if every divorce required seven witnesses. de Martino, F., ‘Chiesa e stato di fronte al divorzio nell' eta romana’, in Festschrift W. Flume i (1978), 137–51, at p. 148Google Scholar, maintains Corbett's view, but without considering the difficulties it raises.
13 Rousselle, A., op. cit. (n. 12), p. 78Google Scholar considers two specific cases where a man might need formal proof of divorce: where he was going to bring a charge against his wife and needed a defence against any accusation of lenocinium, and where he intended to live with a concubine after his divorce.
14 The freedman might be required to testify against his patron if, for example, a patron being prosecuted for lenocinium (because he had remained married to an adulterous wife) claimed that he had in fact divorced his wife and that the divorce had been witnessed by the freedman. If the freedman's evidence was not acceptable against his patron, he would not be able to testify that he knew nothing of any such divorce. Such a complication would be avoided if the law allowed only independent citizens to witness a divorce.
15 The question is discussed in detail by Manfredini, A., ‘La testimonianza del liberto contro il patrono nel processo criminale di eta classica’, Studi A. Biscardi 3 (Milan, 1982), 223–44Google Scholar.
16 D. 22.5.3 Callistratus records advice issued by Hadrian to various provincial governors about evaluating witnesses, and h.t.6 Licinius Rufinus specifically says that those who can be ordered to be witnesses are not suitable. Paul 5.15.1 ( = Coll. 9.3.1, partly reproduced at D. 22.5.24) says that witnesses brought by the accuser de domo are suspect. According to Codex 4.20.3 (255),domestici testimonii fides improbatur.
17 A number of these points are also noted by Levy, E., Der Hergang der romischen Ehescheidung (Weimar, 1925), pp. 45–6Google Scholar, although his explanation of the new procedure as a means of breaking manus has not found any support.
18 E.g. D. 22.5.3.5 Callistratus says that under the lex Iulia de vi a freedman could not give evidence against his patron's children.
19 Coll. 4.3.5 Paul. The husband could kill a lover only of a specified low social rank.
20 Paul 2.26.8 ( = Coll. 4.12.7).
21 D. 48.5.15(14).2 Scaevola, 48.5.30(29).5 Ulpian.
22 Apart from the adultery law, there might be considerations about dowry and other property arrangements which would make a continuation of the first marriage seem preferable to starting a new marriage. The possibility of a divorced couple reuniting interested the jurists considerably. If the husband was freeborn, a divorced couple could not renew their marriage after the woman had been convicted of adultery.
23 Codex 9.9.29(30) (326).
24 I am very grateful to Prof. J. Crook, Miss J. Gardner and Dr D. Johnston for their help and advice in the preparation of this paper.