Marriage in ancient Rome

Early Roman law recognised three kinds of marriage: confarreatio, symbolized by the sharing of spelt bread (panis farreus);[15] coemptio, "by purchase"; and by usus (habitual cohabitation). Patricians always married by confarreatio, while plebeians married by coemptio or usus: 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 families of the early Republic, manus marriage was the norm;[16] the bride passed from the manus ("hand") of her father to the manus of her husband, remaining under one or another form of male potestas (power).[17]

Manus marriage was an institutionally unequal relationship. By the time of Julius Caesar, it was largely abandoned in favour of "free" marriage;[18] when a wife moved into her husband's home, she remained under her father's lawful authority; but she did not conduct her daily life under his direct scrutiny.[19] and her husband had no legal power over her.[20] This was one of the factors in the independence Roman women enjoyed, relative to those of many other ancient cultures and up to the modern period:[21] Free marriage usually involved two citizens of equal or near-equal status, or a citizen and a person who held Latin rights. In the later Imperial period and with official permission, soldier-citizens and non-citizens could marry. So total was the law's separation of property that gifts between spouses were recognised as conditional loans; if a couple divorced or even lived apart, the giver could reclaim the gift.[22]

Inscription (CIL 14.5326) from Ostia Antica recording a decree that newlyweds are to pray and sacrifice before the altar to the imperial couple Antoninus Pius and Faustina as exemplifying Concordia, marital harmony[23]

Following the collapse of the Republic, laws pertaining to marriage, parenting, and adultery were part of Augustus' program to restore the mos maiorum (traditional social norms), while consolidating his power as princeps and paterfamilias of the Roman state.[24] Marriage and remarriage had become less frequent; and the citizen birth-rate had fallen, particularly among the wealthier, more leisured classes. Augustan law pertaining to marriage and family life encouraged marriage and having children, and punished adultery as a crime.[25] The new legislation formalised and enforced what had been considered a traditional, moral duty to family and the State; all men between 25 and 60 years of age, and all women between 20 and 50 were to marry and have children, or pay extra tax in proportion to their wealth. Members of the upper classes thus had most to lose. Citizens who had already produced three children, and freed persons who had produced four, were exempt. Marriages between senators and freed women, and slaves and citizens, were declared legally void. Children born to such liaisons were illegitimate, non-citizen and unable to inherit.[26] A married woman who bore three children or more could be granted legal independence under the ius liberorum.[27] These laws were badly received; they were modified in AD 9 by the Lex Papia Poppaea;[28] eventually they were nearly all repealed or fell into disuse under Constantine and later emperors, including Justinian.[25]

Heracles and Omphale, Roman fresco, Pompeian Fourth Style (45–79 AD), Naples National Archaeological Museum, Italy

Dowry (Latin dos, a gift) was the payment made by a wife's family to her husband, nominally to cover the expenses of their household. It was more customary than compulsory. Ancient papyrus texts show that dowries typically included land and slaves but could also include jewelry, toiletries, mirrors, and clothing.

While a marriage lasted, the dowry was the husband's property but his use of it was restricted; if the marriage ended through divorce, it was returned to either the wife or her family.[34][35] If the husband committed offenses which led to divorce, he lost claim to any share in the dowry. If a wife was blameless for the ending of her marriage, the dowry was restored to her. If a wife or husband with children initiated a divorce, their partner could claim a share of dowry on behalf of the children, to meet their needs and later inheritance.[36]

A dowry of dos recepticia was one in which agreements were made in advance about its disposal and recovery. A dowry of dos profecticia was one given by the bride's father or her paterfamilias; it could be recovered by the donor or by the divorced woman herself. A dowry of dos adventicia was more flexible; it might be given by the wife, though it came from her father, and used to settle a debt incurred by the husband. If she divorced, a wife could reclaim this dowry; if she died, the husband kept it.[37]

Lawful divorce was relatively informal; the wife simply took back her dowry and left her husband's house. Roman men had always held the right to divorce their wives; a pater familias could order the divorce of any couple under his manus.[38] According to the historian Valerius Maximus, divorces were taking place by 604 BCE or earlier, and the early Republican law code of the Twelve Tables provided for it. Divorce was socially acceptable if carried out within social norms (mos maiorum). By the time of Cicero and Julius Caesar, divorce was relatively common and "shame-free," the subject of gossip rather than a social disgrace.[39] Valerius says that Lucius Annius was disapproved of because he divorced his wife without consulting his friends; that is, he undertook the action for his own purposes and without considering its effects on his social network (amicitia and clientela). The censors of 307 BCE thus expelled him from the Senate for moral turpitude.

Elsewhere, however, it is claimed that the first divorce took place only in 230 BCE, at which time Dionysius of Halicarnassus notes[40] that "Spurius Carvilius, a man of distinction, was the first to divorce his wife" on grounds of infertility. This was most likely the Spurius Carvilius Maximus Ruga who was consul in 234 and 228 BCE. The evidence is confused.[41] A man could also divorce his wife for adultery, drunkenness, or making copies of the household keys.[42] Around the 2nd century, married women gained the right to divorce their husbands.[43]

Divorce by either party severed the lawful family alliance that had been formed through the marriage; and remarriage might create an entirely new set of economically or politically useful alliances. Among the elite, husbands and wives might remarry several times.[42] Only one spouse's will was required for any divorce, even if the divorced party was not informed. A spouse who had entered marriage sane and healthy, but became incapable of sound judgment (insane) was not competent and could not divorce their partner; they could be divorced without their knowledge or legal notice. Divorce, like marriage, was considered a family affair. It was discussed and agreed in private, in an informal family gathering of the parties most affected; the husband, wife, and senior members of both families. No public record was kept of the proceedings. Official registration of divorce was not required until 449 CE.[43]

The frequency of remarriage among the elite was high. Speedy remarriage was not unusual, and perhaps even customary, for aristocratic Romans after the death of a spouse.[44] While no formal waiting period was dictated for a widower, it was customary for a woman to remain in mourning for ten months before remarrying.[45] The duration may allow for pregnancy: if a woman had become pregnant just before her husband's death, the period of ten months ensures that no question of paternity, which might affect the child's social status and inheritance, would attach to the birth.[46] No law prohibited pregnant women from marrying, and there are well-known instances: Augustus married Livia when she was carrying her former husband's child, and the College of Pontiffs ruled that it was permissible as long as the child's father was determined first. Livia's previous husband even attended the wedding.[47]

Because elite marriages often occurred for reasons of politics or property, a widow or divorcée with assets in these areas faced few obstacles to remarrying. She was far more likely to be legally emancipated than a first-time bride, and to have a say in the choice of husband. The marriages of Fulvia, who commanded troops during the last civil war of the Republic and who was the first Roman woman to have her face on a coin, are thought to indicate her own political sympathies and ambitions: she was married first to the popularist champion Clodius Pulcher, who was murdered in the street after a long feud with Cicero; then to Scribonius Curio, a figure of less ideological certitude who at the time of his death had come over to Julius Caesar; and finally to Mark Antony, the last opponent to the republican oligarchs and to Rome's future first emperor.

Most wives were encouraged to remarry after either the death of the husband or a divorce; and a high death rate, low average life expectancy and high divorce rate meant frequent or multiple remarriages.[48] Since children were expected in marriage, each spouse usually brought at least one child to the new marriage. Remarriages thus created a new blending of the family in ancient Roman society, where children were influenced by stepparents and some instances where stepmothers were younger than their stepchildren.[48] Ancient physicians believed that a woman was liable to get very sick if she was deprived of sexual activity and it could even lead to a woman getting ‘'hysteric uterine constriction.’'[49] There was even legislation passed during the rule of Augustus that required widows and widowers to remarry to be able to fully inherit from people outside of their immediate family.[49]

Dido embracing Aeneas, from a Roman fresco in the House of Citharist in Pompeii, Italy; Pompeian Third Style (10 BC – 45 AD)

Adultery was a sexual offense committed by a man with a woman who was neither his wife nor a permissible partner such as a prostitute or slave.[50] A married man committed adultery mainly when his female partner was another man's wife or unmarried daughter.[51] The punishment varied at different periods of Roman history and depending on the circumstances.

Although prohibitions against adultery and harsh punishments are mentioned during the Republic (509–27 BC), historical sources suggest that they were regarded as archaic survivals, and should not be interpreted as accurate representations of behavior. Adultery was normally considered a private matter for families to deal with, not a serious criminal offense requiring the attention of the courts,[52][53] though there were some cases when adultery and sexual transgressions by women had been brought to the aediles for judgment.[54] According to Cato (2nd century BC), a husband had an ancient right (ius) to kill his wife if he caught her in the act of adultery. The existence of this "right" has been questioned; if it did exist, it was a matter of custom and not statute law,[55] and probably only applied to those in the manus form of marriage, which had become vanishingly rare by the Late Republic (147–27 BC), when a married woman always remained legally a part of her own family. No source records the justified killing of a woman for adultery by either a father or husband during the Republic.[56] Adultery was sufficient grounds for divorce, however, and if the wife was at fault, the wronged husband got to keep a portion of her dowry, though not much more than if he had repudiated her for less serious forms of misconduct.[57]

As part of the moral legislation of Augustus in 18 BC, the Lex Iulia de adulteriis ("Julian Law concerning acts of adultery") was directed at punishing married women who engaged in extra-marital affairs. The implementation of punishment was the responsibility of the paterfamilias, the male head of household to whose legal and moral authority the adulterous party was subject. If a father discovered that his married daughter was committing adultery in either his own house or the house of his son-in-law, he was entitled to kill both the woman and her lover; if he killed only one of the adulterers, he could be charged with murder. While advertising the father's power, the extremity of the sentence seems to have led to its judicious implementation, since cases in which this sentence was carried out are infrequently recorded — most notoriously, by Augustus himself against his own daughter.[58]

A wronged husband was entitled to kill his wife's lover if the man was either a slave or infamis, a person who, though perhaps technically free, was excluded from the normal legal protections extended to Roman citizens. Among the infames were convicted criminals, entertainers such as actors and dancers, prostitutes and pimps, and gladiators.[59] He was not allowed to kill his wife, who was not under his legal authority.[57] If he chose to kill the lover, however, the husband was required to divorce his wife within three days and to have her formally charged with adultery.[60] If a husband was aware of the affair and did nothing, he himself could be charged with pandering (lenocinium, from leno, "pimp").[61]

If no death penalty was carried out and charges for adultery were brought, both the married woman and her lover were subject to criminal penalties, usually including the confiscation of one-half of the adulterer's property, along with one third of the woman's property and half her dowry; any property brought by a wife to the marriage or gained during marriage normally remained in her possession following a divorce. A woman convicted of adultery was barred from remarrying.[50]

Scholars have often assumed that the Lex Iulia was meant to address a virulent outbreak of adultery in the Late Republic. An androcentric perspective in the early 20th century held that the Lex Iulia had been "a very necessary check upon the growing independence and recklessness of women."[62] A gynocentric view in the late 20th to early 21st century saw love affairs as a way for the intelligent, independent women of the elite to form emotionally meaningful relationships outside marriages arranged for political purposes.[63] It is possible, however, that no such epidemic of adultery even existed; the law should perhaps be understood not as addressing a real problem that threatened society, but as one of the instruments of social control exercised by Augustus that cast the state, and by extension himself, in the role of paterfamilias to all Rome.[64] Humiliating or violent punishments for adultery are prescribed by law and described by poets, but are absent in the works of Roman historians or the letters of Cicero: "The men who people the pages of Cicero and Tacitus do not burst into their wives' bedrooms to take violent revenge (even when license was granted by the law)."[65] Augustus himself, however, had frequent recourse to his moral laws in choosing to banish potential enemies and rivals from Rome, and the effect of the legislation seems to have been primarily political.[66][67]