Roman Marriage, Divorce, and Dowry During the Early Empire
At the time of the kings of Rome and during the early Republic, the most common type of marriage was cum manu, where the wife moved from being under the authority of her paterfamilias, the oldest living male of an extended Roman family (familia) who owned everything, to being under the authority of her husband as if she were one of his children.
Marriages were intended to last until death claimed one of the partners, although divorce was allowed. Since the husband had absolute authority over his wife, only he could initiate a divorce. A reason, generally for some misconduct, was provided, and a council of the male members of the husband’s extended family would decide if divorce was appropriate.
By the end of the late Republic (after 100 BC), most marriages were sine manu, where the woman remained under the authority of her own paterfamilias (father or grandfather) if he was still living. If he was dead, she was under her own authority (sui iuris) but was required to have a male guardian (tutor) to oversee her in financial matters. The guardian was often selected by her paterfamilias before his death. If a woman didn’t think her guardian was doing a good job, she could go to court and request that a different guardian of her choice be assigned.
For a union to be an officially recognized Roman marriage, the paterfamilias of both families had to approve it. In practice, her paterfamilias often arranged it as well. After his death, the guardian frequently helped arrange a marriage and the details of her dowry, but he could not dictate whom a sui iuris woman could marry.
From the time of Cicero onward, divorce among the upper classes became very common. Because of falling birthrates among elite Romans (senatorial and equestrian), in 18 BC Augustus Caesar issued a law that tried to encourage childbearing. One provision of the law did away with the requirement of a guardian for women who had borne at least three children.
The change from a married woman being under her husband’s authority to remaining under her father’s authority or her own had a profound effect on divorce and how a dowry was handled after the divorce. Unlike contemporary marriage in Western societies, Roman marriage was not a legal contract. It was a mutual agreement between the man and woman to live together in a married state.
The legal minimum age of marriage was twelve for a girl; she could be betrothed as young as ten. While a father could not officially force a son to marry, a son could be pressured into it. A daughter was assumed to consent if she didn’t actively object. The only allowable reason for objecting was if the fiancé was “morally undesirable.” Marriages were often arranged to form political alliances in the senatorial order and for business ties among equestrians.
Either person could decide to end the marriage at any time and for any reason. A woman’s paterfamilias could declare the marriage over, and his daughter needed his consent to divorce. A sui iuris woman could end the marriage herself if she wished. The intention to end a marriage was announced in front of witnesses, and a message was sent to the spouse being divorced.
Upon divorce, the dowry would be returned to the woman so she would have the financial means to support herself or to induce another man to marry her, which Augustus and later emperors preferred to sustain birthrates. An unmarried woman was taxed under the Augustan law.
Unlike the marriage, the dowry was a legal contract between the husband and the woman’s paterfamilias or the woman if she was sui iuris. As the one in charge of her finances, her guardian was involved.
When a couple married, the real estate portion of the dowry was transferred right away. The cash balance was customarily paid in annual installments over three years. This generally accepted practice could be changed by a written contract. If a husband died, the dowry was returned to the widow quickly so she could remarry. If her paterfamilias was still alive when a wife died, her dowry was returned to him since he owned the property of the entire familia. If she was already sui iuris, her husband kept the dowry.
Upon divorce, the entire dowry was to be returned except under certain circumstances. The ex-husband could keep a portion of the dowry for their children, who remained under his control and in his care. He could also keep a portion if she had been extravagant while she managed his household affairs or if she had behaved immorally. The profits made using the dowry remained the property of the husband. The paterfamilias received the dowry if he still lived. If he had died, it went to the ex-wife since she became independent at his death.
In Hope’s Reward, Felicia’s father has died, making her sui iuris. Her uncle Gaius Felix was chosen by her father to serve as her guardian. He arranged her marriage with Falco, using her dowry to get Falco to enter into a business partnership with him. Felica approved of the marriage beforehand, but when Falco almost kills her in a drunken rage, she asks her guardian to protect her and help her with the divorce process. Being unwilling to jeopardize his partnership with Falco, he sends her to her sister in another city with the understanding that she will change guardian to her brother-in-law Gnaeus. Gnaeus would then announce the divorce and request the dowry’s return.
But because Felicia is sui iuris, Falco can keep her dowry if he can arrange her death before the divorce is announced, and that seems like a good business decision to him.