Marriage: Institutes of Justinian

Marriage

Roman citizens are bound together in lawful matrimony when they are united according to law, the males having attained the age of puberty, and the females a marriageable age, whether they are fathers or sons of a family; but, of the latter, they must first obtain the consent of their parents, in whose power they are. For both natural reason and the law require this consent; so much so, indeed, that it ought to precede the marriage. Hence the question has arisen, whether the daughter of a madman could be married, or his son marry? And as opinions were divided as to the son, we decided that as the daughter of a madman might, so may the son of a madman marry without the intervention of the father, according to the mode established by our constitutio.

1. We may not marry every woman without distinction; for with some, marriage is forbidden. Marriage cannot be contracted between persons standing to each other in the relation of ascendant and descendant, as between a father and daughter, a grandfather and his granddaughter, a mother and her son, a grandmother and her grandson; and so on, ad infinitum. And, if such persons unite together, they only contract a criminal and incestuous marriage; so much so, that ascendants and descendants, who are only so by adoption, cannot intermarry; and even after the adoption is dissolved, the prohibition remains. You cannot, therefore, marry a woman who has been either your daughter or granddaughter by adoption, although you may have emancipated her.

2. There are also restrictions, though not so extensive, on marriage between collateral relations. A brother and sister are forbidden to marry, whether they are the children of the same father and mother, or of one of the two only. And, if a woman becomes your sister by adoption, you certainly cannot marry; but, if the adoption is destroyed by emancipation, you may marry her; as you may also, if you yourself are emancipated. Hence it follows, that if a man would adopt his son-in-law, he ought first to emancipate his daughter; and if he would adopt his daughter-in-law, he ought previously to emancipate his son.

3. A man may not marry the daughter of a brother, or a sister, nor the granddaughter, although she is in the fourth degree. For when we may not marry the daughter of any person, neither may we marry the granddaughter. But there does not appear to be any impediment to marrying the daughter of a woman whom your father has adopted; for she is no relation to you, either by natural or civil law.

4. The children of two brothers or two sisters, or of a brother and sister, may marry together.

5. So, too, a man may not marry his paternal aunt, even though she be so only by adoption; nor his maternal aunt; because they are regarded in the light of ascendants. For the same reason, no person may marry his great-aunt, either paternal or maternal.

6. There are, too, other marriages from which we must abstain, from regard to the ties created by marriage; for example, a man may not marry his wife’s daughter, or his son’s wife, for they are both in the place of daughters to him; and this must be understood to mean those who have been our stepdaughters or daughters-in-law; for if a woman is still your daughter-in-law, that is if she is still married to your son, you cannot marry her for another reason, as she cannot be the wife of two persons at once. And if your step-daughter, that is, if her mother is still married to you, you cannot marry her, because a person cannot have two wives at the same time.

7. Again, a man is forbidden to marry his wife’s mother, and his father’s wife, because they hold the place of mothers to him; a prohibition which can only operate when the affinity is dissolved; for if your step-mother is still your step-mother, that is, if she is still married to your father, she would be prohibited from marrying you by the common rule of law, which forbids a woman to have two husbands at the same time. So if your wife’s mother is still your wife’s mother, that is, if her daughter is still married to you, you cannot marry her, because you cannot have two wives at the same time.

8. The son of a husband by a former wife, and the daughter of a wife by a former husband, or the daughter of a husband by a former wife, and the son of a wife by a former husband, may lawfully contract marriage, even though they have a brother or sister born of the second marriage.

9. The daughter of a divorced wife by a second husband is not your step-daughter; and yet Julian says we ought to abstain from such a marriage. For the betrothed wife of a son is not your daughter-in-law; nor your betrothed wife your son’s step-mother; and yet it is more decent and more in accordance with law to abstain from such marriage.

10. It is certain that the relationship of slaves is an impediment to marriage, even if the father and daughter or brother and sister, as the case may be, have been enfranchised.

11. There are other persons also, between whom marriage is prohibited for different reasons, which we have permitted to be enumerated in the books of the Digests or Pandects, collected from the old law.

12. If persons unite themselves in contravention of the rules thus laid down, there is no husband or wife, no nuptials, no marriage, nor marriage portion, and the children born in such a connection are not in the power of the father. For, with regard to the power of a father, they are in the position of children conceived in prostitution, who are looked upon as having no father, because it is uncertain who he is; and are therefore called spurii, either from a Greek word sporadan, meaning “at hazard,” or as being sine patre, without a father. On the dissolution of such a connection there can be no claim made for the demand of a marriage portion. Persons who contract prohibited marriages are liable also to further penalties set forth in our imperial constitutiones.

13. It sometimes happens that children who at their birth were not in the power of their father are brought under it afterwards. Such is the case of a natural son, who is given to the curia, and then becomes subject to his father’s power. Again, a child born of a free woman, with whom marriage was not prohibited by any law, but with whom the father only cohabited, will likewise become subject to the power of his father if at any time afterwards instruments of dowry are drawn up according to the provisions of our constitutio. And this constitutio confers the same benefits on any children who may be subsequently born of the same marriage.