De divortiis et repudiis
(Concerning divorces and repudiations.)
1 Paulus libro trigesimo quinto ad edictum. Dirimitur matrimonium divortio morte captivitate vel alia contingente servitute utrius eorum.
1 Paulus, On the Edict, Book XXXV. Marriage is dissolved by divorce, death, captivity, or by any other kind of servitude which may happen to be imposed upon either of the parties.
2 Gaius libro undecimo ad edictum provinciale. Divortium autem vel a diversitate mentium dictum est vel quia in diversas partes eunt, qui distrahunt matrimonium. 1In repudiis autem, id est renuntiatione comprobata sunt haec verba: ‘tuas res tibi habeto’, item haec: ‘tuas res tibi agito’. 2In sponsalibus quoque discutiendis placuit renuntiationem intervenire oportere: in qua re haec verba probata sunt: ‘condicione tua non utor’. 3Sive autem ipsi praesenti renuntietur sive absenti per eum, qui in potestate eius sit cuiusve is eave in potestate sit, nihil interest.
2 Gaius, On the Provincial Edict, Book XI. The word divorce is derived either from diversity of opinion, or because those who dissolve their marriage go different ways. 1In cases of repudiation, that is to say, in renunciation of marriage, the following words are employed: “Retain your property” or “Retain the management of your property.” 2For the purpose of dissolving betrothals, it is certain that a renunciation must be made, in which case the following words are used, namely: “I will not accept your conditions.” 3It makes no difference whether the renunciation takes place in the presence or in the absence of the person under whose control one of the parties may be, or of him who is under said control.
3 Paulus libro trigesimo quinto ad edictum. Divortium non est nisi verum, quod animo perpetuam constituendi dissensionem fit. itaque quidquid in calore iracundiae vel fit vel dicitur, non prius ratum est, quam si perseverantia apparuit iudicium animi fuisse: ideoque per calorem misso repudio si brevi reversa uxor est, nec divortisse videtur.
3 Paulus, On the Edict, Book XXXV. It is not a true or actual divorce unless the purpose is to establish a perpetual separation. Therefore, whatever is done or said in the heat of anger is not valid, unless the determination becomes apparent by the parties persevering in their intention, and hence where repudiation takes place in the heat of anger and the wife returns in a short time, she is not held to have been divorced.
4 Ulpianus libro vicesimo sexto ad Sabinum. Iulianus libro octavo decimo digestorum quaerit, an furiosa repudium mittere vel repudiari possit. et scribit furiosam repudiari posse, quia ignorantis loco habetur: repudiare autem non posse neque ipsam propter dementiam neque curatorem eius, patrem tamen eius nuntium mittere posse. quod non tractaret de repudio, nisi constaret retineri matrimonium: quae sententia mihi videtur vera.
4 Ulpianus, On Sabinus, Book XXVI. Julianus asks in the Eighteenth Book of the Digest whether a woman who has become insane can repudiate her husband, or be herself repudiated; and he says that an insane woman can be repudiated, because she is in the position of a person who has no knowledge of anything, but that she cannot repudiate her husband on account of her madness, nor can her curator do so, but her father can repudiate him. He would not have treated the question of repudiation unless it had been established that the marriage would continue to exist even though the woman was insane. This opinion seems to me to be correct.
5 Idem libro trigesimo quarto ad edictum. Si filia emancipata idcirco diverterat, ut maritum lucro dotis adficiat, patrem fraudet, qui profecticiam dotem potuit petere, si constante matrimonio decessisset, ideo patri succurrendum est, ne dotem perdat: non enim minus patri quam marito succurrere praetorem oportet. danda igitur est ei dotis exactio, atque si constante matrimonio decessisset filia.
5 The Same, On the Edict, Book XXXIV. If a girl who has been emancipated should obtain a divorce in order that her husband may profit by her dowry, and defraud her father who could claim it as profectitious if she should die during marriage, relief should be granted the father to prevent him from losing the dowry, for the Prætor must come to the aid of the father just as much as to that of the husband. The right to claim the dowry should therefore be granted to the father, just as if his daughter had died during marriage.
6 Iulianus libro sexagesimo secundo digestorum. Uxores eorum, qui in hostium potestate pervenerunt, possunt videri nuptarum locum retinere eo solo, quod alii temere nubere non possunt. et generaliter definiendum est, donec certum est maritum vivere in captivitate constitutum, nullam habere licentiam uxores eorum migrare ad aliud matrimonium, nisi mallent ipsae mulieres causam repudii praestare. sin autem in incerto est, an vivus apud hostes teneatur vel morte praeventus, tunc, si quinquennium a tempore captivitatis excesserit, licentiam habet mulier ad alias migrare nuptias, ita tamen, ut bona gratia dissolutum videatur pristinum matrimonium et unusquisque suum ius habeat imminutum: eodem iure et in marito in civitate degente et uxore captiva observando.
6 Julianus, Digest, Book LXII. The wives of those who are in the hands of the enemy can be considered to always retain the place of married women, solely on the ground that others cannot rashly marry them. And, generally speaking, it must be said that, so long as it is certain that the husband is in captivity and is living, his wife has not the right to form another matrimonial connection, unless she herself has given some cause for repudiation. But if it is uncertain whether the husband who is held by the enemy is living or dead, then, if the term of five years has passed from the time when he was taken captive, his wife will have the right to marry again, so that the first marriage will be held to have been amicably dissolved, and each one of the parties will have their respective rights annulled. The same rule must be observed where a husband remains at home, and his wife is taken captive.
7 Papinianus libro primo de adulteriis. Si paenituit eum, qui libellum tradendum divortii dedit, isque per ignorantiam mutatae voluntatis oblatus est, durare matrimonium dicendum, nisi paenitentia cognita is qui accepit ipse voluit matrimonium dissolvere: tunc enim per eum qui accepit solvitur matrimonium.
7 Papinianus, On Adultery, Book I. Where one party who has given the other notice of divorce repents, and the other is ignorant of the change of mind, the marriage must be held to continue to exist; unless the one who received the notice and is aware of the change of mind, himself or herself desires to dissolve the marriage, for then it will be dissolved by the one who received the notice.
8 Idem libro secundo de adulteriis. Divus Hadrianus eum, qui alienam uxorem ex itinere domum suam duxisset et inde marito eius repudium mississet, in triennium relegavit.
8 The Same, On Adultery, Book II. The Divine Hadrian exiled for the term of three years a man who, while on a journey, took the wife of another man to his house, from which she sent to her husband a notice of repudiation.
9 Paulus libro secundo de adulteriis. Nullum divortium ratum est nisi septem civibus Romanis puberibus adhibitis praeter libertum eius qui divortium faciet. libertum accipiemus etiam eum, qui a patre avo proavo et ceteris susum versum manumissus sit.
9 Paulus, On Adultery, Book II. No divorce is valid unless it takes place in the presence of seven Roman citizens, who are of age, in addition to the freedman of the party who institutes proceedings for that purpose. We understand the freedman to be one who has been manumitted by the father, the grandfather, the great-grandfather, and other ascendants interested in the proceedings above mentioned.
10 Modestinus libro primo regularum. Patrono invito liberta, quam in matrimonio habuit, ab eo discedere non potest, nisi ex causa fideicommissi manumissa sit: tunc enim potest, licet eius fit liberta.
10 Modestinus, Rides, Book I. A freedwoman, who has married her patron, cannot separate from him without his consent, unless she has been manumitted under the terms of a trust, for then she can do so even though she is his freedwoman.
11 Ulpianus libro tertio ad legem Iuliam et Papiam. Quod ait lex: ‘divortii faciendi potestas libertae, quae nupta est patrono, ne esto’, non infectum videtur effecisse divortium, quod iure civili dissolvere solet matrimonium. quare constare matrimonium dicere non possumus, cum sit separatum. denique scribit Iulianus de dote hanc actionem non habere. merito igitur, quamdiu patronus eius eam uxorem suam esse vult, cum nullo alio conubium ei est nam quia intellexit legis lator facto libertae quasi diremptum matrimonium, detraxit ei cum alio conubium. quare cuicumque nupserit, pro non nupta habebitur. Iulianus quidem amplius putat nec in concubinatu eam alterius patroni esse posse. 1Ait lex: ‘quamdiu patronus eam uxorem esse volet’. et velle debet uxorem esse et patronus durare: si igitur aut patronus esse aut velle desierit, finita est legis auctoritas. 2Illud rectissime placuit, qualiquali voluntate intellegi possit patronus animum habere desisse quasi in uxorem, finiri legis huius beneficium. proinde cum patronus rerum amotarum cum liberta, quae ab invito eo divorterat, vellet experiri, imperator noster cum divo patre suo rescripsit intellegi eum hoc ipso nolle nuptam sibi, qui eam actionem vel aliam inportet, quae non solet nisi ex divortio oriri. quare si accusare eam adulterii coeperit vel alio crimine postulare, quod uxori nemo obicit, magis est, ut diremptum sit matrimonium: etenim meminisse oportet ideo adimi cum alio conubium, quia patronus sibi nuptam cupit. ubicumque igitur vel tenuis intellectus videri potest nolentis nuptam, dicendum est iam incipere libertae cum alio esse conubium. proinde si patronus sibi desponderit aliam vel destinaverit vel matrimonium alterius appetierit, credendus est nolle hanc nuptam: et si concubinam sibi adhibuerit, idem erit probandum.
11 Ulpianus, On the Lex Julia et Papia, Book III. Where the law says: “The right of a freedwoman, who is married to her patron, to obtain a divorce shall not be allowed,” this is not held to have made the divorce ineffective, because marriage is ordinarily dissolved by the Civil Law; therefore we cannot say that the marriage exists, as a separation has taken place. Again, Julianus says that a wife is not under such circumstances entitled to an action to recover her dowry; hence it is reasonable that when her patron desires her to remain his wife she cannot marry anyone else. For, as the legislator understood that the marriage was, to a certain extent, dissolved by the act of the freedwoman, he prevented her marriage with another, wherefore if she should marry anyone else, she will be considered as not married. Julianus, indeed, goes farther, for he thinks that such a woman cannot even live in concubinage with anyone except her patron. 1The law says: “As long as the patron desires her to remain his wife.” This means that the patron wishes her to be his wife, and that his relationship towards her should continue to exist; therefore where he either ceases to be her patron, or to desire that she should remain his wife, the authority of the law is at an end. 2It has been most justly established that the benefit of this law terminated whenever the patron, by any indication of his will whatsoever, is understood to have relinquished his desire to keep the woman as his wife. Hence, when he institutes proceedings against his freedwoman on the ground of the removal of property, after she had divorced him without his consent, our Emperor and his Divine Father stated in a Rescript that the party was understood to be unwilling that the woman should remain his wife, when he brings this action or another like it, which it is not customary to do unless in case of divorce. Wherefore, if the husband accuses her of adultery or of some other crime of which no one can accuse a wife but her husband, the better opinion is that the marriage is dissolved; for it should be remembered that the wife is not deprived of the right to marry another except where the patron himself desires to retain her in that capacity. Hence, whenever even a slight reason indicates that the husband does not desire her to remain his wife, it must be said that the freedwoman has already acquired the right to contract marriage with another. Therefore, if the patron has betrothed himself to, or destined himself for some other woman, or has sought marriage with another, he must be considered to no longer desire the freedwoman to be his wife. The same rule will apply where he keeps the woman as his concubine.