Roman Family Law: The Power of the Father, the Rights of the Mother, the Fate of the Children
The Roman concept of family was distinctly different from today’s nuclear family, defined as an independent unit of father, mother, and children under the age of eighteen. The Roman familia consisted of a father, his wife with some limitations, his children whether young or fully grown, and his slaves.
Roman society was intensely patriarchal. The paterfamilias was the oldest male and the legal head of the familia. Until he died, he possessed patria potestas (the power of the father) over his grown children, both male and female, whether they were married or not.
The paterfamilias had the power to tell any of his children to do something, and they were required to obey him. He had the power of life and death over all except his wife. He had the right to kill his child of any age (ius vitae necisque), the right to decide whether a newborn would be allowed to live or would be exposed to the elements to die, and the right to sell his children into slavery. It was not uncommon for an unwanted or defective baby to be exposed. Although it was legal, killing one’s children after infancy was generally frowned upon without extreme provocation.
He owned all the family property, with the exception of the wages earned by a grown son from his military service. If a grown son ran a business, the business and the profits all belonged to his father. Grown sons usually had families of their own and lived separately from their father, but they lived off the allowance (peculium) he provided. Only at his death did his children finally became independent (sui iuris, under one’s own authority).
A father could choose to emancipate a grown son before his death. There were two main reasons. The son might have done something that led his father to disown him, but fathers sometimes emancipated their sons so they could inherit from their mother. Since the mother officially remained in the familia of her father, all her property remained subject to the control of her own paterfamilias. Her children wouldn’t inherit directly from her if they were still under the control of their father.
Roman marriage took different forms, depending on the time period and the circumstances of the couple getting married. During the early Republic, a woman might marry in manu, where she passed from her father’s control into her husband’s control, or sine manu, where she remained under her father or a male guardian. By the time of the Empire, most marriages were sine manu. Marrying sine manu had a major financial effect that contributed to the stability of marriages.
Because a woman didn’t officially leave her father’s familia, she kept her maiden name when she married. The children took their father’s name. When Cornelia Scipia (whose father’s clan and family names were Cornelius Scipio) married Lucius Claudius Drusus, their first-born son would also be Lucius Claudius Drusus, and their later sons would be Claudius Drusus but with a different first name. Their first-born daughter would normally be Claudia Drusilla, a feminine form of her father’s clan and family name.
A new wife was usually accompanied by a dowry in a sine manu marriage. Because her paterfamilias owned all the family property, the dowry did not automatically become the property of her new husband. The dowry itself remained the property of her paterfamilias or under the control of her guardian, if her paterfamilias had died. The guardian was usually, but not always, the male relative who replaced her dead father as the new paterfamilias. Her husband could use the dowry and keep any profits it earned, but if the marriage was ended through divorce by either husband or wife, the full dowry had to be returned.
In an attempt to encourage the Roman elite to have more children, Emperor Augustus declared that a freeborn woman would be released from the requirement of a guardian after bearing three children. She could then take control of her own property and do what she wished with it without any man’s permission.
A Roman marriage existed by the consent of the couple for as long as they wanted to be considered a family unit. The marriage was recognized as valid when both parties publicly declared their desire to unite in a marriage. But because it was based only on the consent of the couple, it wasn’t a legally binding agreement like modern marriages. Either party could decide to divorce the other for any reason. The divorce became “official” when the decision by one to separate from the other was declared in front of witnesses, even if the spouse wasn’t present. It was a “no-fault” divorce, and the partner being divorced had no say in whether the divorce happened.
The dowry, on the other hand, was usually established by a legally binding contract. It was the husband’s to use as long as the marriage lasted. He owned any profits, but his wife’s family still owned the original amount of the dowry. When a couple divorced, the husband had to return the full amount of the dowry. His inability to do so often discouraged a man from divorcing his wife.
Women were often discouraged from divorcing their husbands because any children were the property of the paterfamilias. He had the right to refuse her any further contact with her children after a divorce. Even if her husband died while they were still married, his father could tell the widow that she could no longer see her children.
While reputable women were expected to be faithful to their husbands, it was not considered adultery when a Roman man engaged in sexual activity with an unmarried woman, slave or free, who was not his wife. Promiscuous activity on the part of the man was considered normal, but a respectable Roman matron was expected to abstain from extramarital affairs, at least as far as anyone outside her household knew.
In Second Chances, Cornelia tolerated many years of Lucius’s infidelity because she didn’t want to risk losing her children. But after twenty-five years of marriage, her three boys were grown. When Lucius decides to put their daughter at risk, she has no legal power to stop him. She decides to protect Drusilla by divorcing Lucius without his knowledge, reclaiming her dowry, and disappearing with her daughter before he can stop her.
As the mother of four children, she didn’t need a guardian’s permission to divorce Lucius or do what she wanted with her dowry. The divorce and immediate return of her dowry were her legal rights, but Roman law gave Lucius all rights to Drusilla.
When Cornelia took Drusilla without her ex-husband’s permission, she “acquired and concealed” a Roman citizen who didn’t belong to her. Technically, she violated the law against “possessing a citizen in bad faith” (plagium). But Roman abduction law was aimed at those who kidnapped a person to make them a slave, not a mother stealing her own daughter from her father to protect her. Given the political prominence of her family, it’s not clear how the Roman courts would have dealt with the case if Lucius wanted Cornelia tried for kidnapping.