A Comparative Analysis of American Common Law and Roman Marriage

Introduction
Roman marriage differed greatly from marriage today. In the United States, our marital status affects legal issues like alimony, division of property, inheritance, wrongful death suits, workmen's compensation, social security, immigration, and taxes (Clark 123). However, marriage was more a social institution than a legal one in Rome (Nicholas 80). Its main goals were to promote procreation (Frier Case 12) in a time where few people lived into their forties and to tie families together. For instance, if someone married his daughter to a Senator, she would earn prestigious clarissimi status (Case 42). These marriages would socially connect families and confer status on the daughter's family. Roman marriage was far more social while our marriage brings legal implications.

Roman governments generally tried not to intervene in marital issues. In Case 75, Emperor Alexander tells us, "Long-standing tradition holds that marriages are free." Romans were free to marry and divorce as they desired, without government influence. On the other hand, American couples that marry must register with the government to receive legal benefits. Our government also deters divorce with legal restrictions. Roman governments restricted marriage and divorce far less than ours.

However, we also have Common Law Marriage, which more closely resembles Roman Marriage. Common Law Marriage remains free from most government influence by eliminating many formalities that traditional marriage requires. According to Professor Bruce Frier, marriage requirements usually fall into three broad categories. First, process requirements include licensing and ceremonies. Second, capacity requirements decide who can marry. Third, consent requirements declare what type of agreement is required to establish a marriage (Frier Ch. II, p. 2). We will see that, despite cultural differences between Common Law and Roman Marriage, the two are quite similar, especially in their process, capacity, and consent requirements.

Manus Exception
Roman law had another form of marriage, manus marriage, where the bride entered the groom's family and took on a position similar to his daughter. This form of marriage resembled our traditional marriage, but was quite rare in Rome. Manus marriage only occurred after a year of marriage and added to typical Roman marriage (Nicholas 83). Because manus marriage represented the exception to typical Roman marriage, we will not consider it in this comparison. We will focus on the more common marriages in Rome.

Process
While our marriages have clear beginnings often marked by extravagant ceremonies, Roman marriage did not include ceremony. We see marriage as an event with a clear beginning and end. On the other hand, Romans saw marriage as more of a process. Romans never celebrated anniversaries or held wedding ceremonies, with the exception of the deductio, a ceremony where a bride is brought into her husband's home (Case 20). Still deductio did not signify marriage commencement (Case 21).

Similarly, our Common Law Marriage by definition does not have a ceremony or legal documentation. Instead, common law couples legally marry by expressing mutual consent (Clark 104). Roman marriage was entirely based on the will of those who married. Quintilian expresses a surprising notion that "signed documents will be of no use if it later emerges that [the couple] had no will to marry" (Case 15). This is extremely peculiar to us because our signed agreements usually prevail legally over our intentions. All fifty states allow documented marriage, while only thirteen allow intent based Common Law Marriage (Clark 101). However, the will to marry proved more important than any certificate in Roman marriage.

For different reasons, Roman marriage and Common Law Marriage lack marriage process requirements. Romans seem to follow social tradition with their marriage. Ours also follows this tradition, but Common Law Marriage perpetuates in our lower economic classes (Clark 121, footnote 86) because they may not have the money for ceremonies and the education for documentation. Our upper classes rarely marry through Common Law. Overall, Common Law and Roman process requirements are identical.

Capacity
Since more often our poor marry through Common Law, we could consider this a class restriction on the capacity to marry. Romans similarly had capacity restrictions based on social class. For instance, Roman Senators could not marry freed slaves. Also, higher class Romans could not marry prostitutes, procurers, criminals, adulterers, or actors (Case 10). These capacity restrictions from the lex Iulia kept people from marrying between classes, reinforcing social tradition.

Romans also had to have conubium to marry. Generally Roman citizens and some perigrini (foreigners) had conubium (Case 9). Conubium kept slaves and many non-citizens from marrying. The Romans were quite endogenous and probably used conubium to ensure that more children had pure Roman blood.

Marriage in Rome was also limited by age, but not by much. Girls only had to be twelve years old to marry (Case 7). Since mortality was so high in Rome, families would marry off their daughters as soon as they could bear children. This helped increase birth rates to ensure a continuing population.

Additionally, incestuous relatives (Case 11), soldiers (Nicholas 84) and castrated males (Case 8) could not marry. Incestuous marriage is often narrowly restricted by exogenous societies like Rome. Interestingly, however, Ulpian applies incest rules more laxly on couples related through adoption (Ulpian, D. 23.2.12.4). Apparently Romans shared our belief that incestuous couples violate natural laws. They likely wanted more viable children than incestuous couples would have been able to produce. Castrated males could not marry because they could not procreate. In order to promote procreation, one of their main goals in marriage, Romans imposed these capacity restrictions on marriage.

It may surprise us a bit that castrated males and soldiers could not marry, but Roman capacity restrictions based on age, citizenship, and incest resemble many of our capacity restrictions. We allow people to marry between classes, but some people still look down on marriage between disparate classes. Classes merge even less in Common Law Marriage than in traditional marriage because upper classes rarely use Common Law. By and large, Common Law and Roman marriage impose similar capacity restrictions.

Consent
While both impose capacity requirements but reject process requirements, Roman marriage has more permissive consent requirements than current Common Law Marriage. Ulpian tells us that, in order to marry, there must be conubium between the parties, both must be of reproductive age, and both parties must agree (Case 13). The first two requirements are capacity restrictions while the third is a consent requirement. Surprisingly, Romans only required subjective agreement; if both parties believe they agreed, then they were married.

When both parties must agree, we must remember this includes more than the husband and wife in many cases. Unless both parties are sui iuris, they must receive consent from their pater familia(s). If the pater familias is a grandfather, the father "ought" to agree too (Case 98). It seems that the father does not have to agree, but that he should. However, some jurists held that the father's consent was essential. Somewhat surprisingly, marriage could not occur if the pater familias did not physically meet the prospective spouse (Case 100). This is interesting since marriage could theoretically occur without the spouses meeting. Case 99 suggests that pater familia cannot force their children to marry, but they can influence their marriages greatly. However, parents could not prevent marriage without reason and were compelled to help arrange marriages (Case 103). Rome expected pater familia to play an active role in their children's marriage searches, far more than we expect in our marriages.

Pater familia probably played a larger role in the Roman marriage process because, with the exception of manus marriage, married daughters remained in the potestas of their fathers. Despite often living with their husbands, married women essentially remained in their father's family, even keeping his name. In our traditional marriage system, women leave their families to start a new family. This is why a father symbolically offers his daughter to the groom in marriage ceremonies and why a wife often takes her husband's name. Our Common Law system can range anywhere between the two. Since the marriage is not documented, a wife can informally chose to take her husbands name or keep her own. However, she usually leaves her father's power. Consequently, our parents play a smaller role in choosing spouses than Roman parents did.

Roman marriage focuses on each person's marital intent. In some cases, the husband actually skipped his own deductio. Nevertheless, he married without being present (Case 20). In theory, two people could marry without meeting. This could occur with parental influence.

Because subjective agreement is so difficult to prove, our legal system requires more. We can imagine how difficult it would be to prove the statement "I wanted to marry my wife three years and forty days ago." To prove intent, our Common Law Marriage generally requires objective evidence in addition to subjective agreement. The Romans also used objective agreement to prove their marriages, allowing neighbors to attest that a couple lived as a married couple, thereby supporting the couple's claim that they intended to marry (Case 16). However, Romans did not require this objective proof. In Common Law, third parties can offer objective proof by confirming marriage, but our courts prefer even more evidence that a couple lived as married couples should. Cohabitation seems to prove Common Law Marriage best. Our courts have decided that we can infer both parties agreed to marry if they lived together.

Conversely, Cohabitation means little in Roman marriage. In one case, a bride-to-be lived with her husband for two days before the couple agreed to marriage. Scaevola decides that the two were not married those two days, but married the day of the agreement. Since married couples cannot legally give each other gifts, any gifts the spouses gave to each other in those two days would be valid (Case 22). Scaevola believes the time marriage is contracted is "established on the basis of their agreement" (Case 21), not their cohabitation.

Using cohabitation as the strongest form of objective proof, our courts assume that it is the key to marriage. This was not the case in Rome, however, where a couple could remain married while living apart as long as they both continued to honor the marriage. Ulpian claims, "it is not sexual intercourse that makes a marriage, but rather marital affection" (Case 17). This view reflects Rome's differing goals of marriage, especially family ties in this case. By allowing a couple to marry without living together, two families could form social connections even if the spouses loathed each other. However, this stance somewhat contradicts the Roman goal of procreation.

The main reason our system requires stronger objective evidence is to prevent fraud (Clark 105). Marriage entails many legal benefits, which may entice a couple to fake marriage. If a wealthy person dies, a living partner can win a sizable inheritance if he or she can prove Common Law Marriage. Our courts require objective evidence because we desire legitimate marriages that raise children in a traditional two-parent household.

Romans did not worry much about fraud. This may be because their marriages carried little legal significance. Also, since marriage and divorce were completely free and open, fraud was less of a concern. Unlike our marriage, married Romans kept their own estate (Case 56). Therefore, Romans lacked incentives to sham marriage based on property.

Romans also worried less about fraud because they had a dowry institution. Wives or their pater familia gave dowries to husbands to cover their onera matrimonii (burdens of marriage) (Case 35). According to Paul, these dowries allowed women to marry (Case 29), so we can assume that most, if not all, Roman marriages contained dowries. Dowries often contained huge sums of money and property, usually a full year's household income from the bride's family (Case 29, Discussion 4). With sums this large, we can fairly assume that anyone who gives a dowry truly intends to marry. Common Law Marriage does not contain this financial commitment, which may explain why it requires more objective proof.

While Common Law Marriage requires more proof that Roman marriage, their basic consent requirement remain the same. To wed, both parties must only agree to marry.

Conclusion
We see that while Roman marriage varies greatly from our traditional marriage, it compares closely to our Common Law Marriage. Both eliminate ceremony and process requirements, use capacity requirements that reflect each society's views on who should marry whom, and only require mutual consent to marry. The main difference is that today's Common Law Marriage requires more than the subjective proof that Roman marriage required. Common Law Marriage requires objective proof, especially cohabitation. However, in Roman law, cohabitation meant nothing. Common Law and Roman marriage have different goals and implications, but these differences likely arose as people changed how they viewed marriage. The fundamental aspects of the two, the process, capacity, and consent, remain strikingly similar.

Works Cited

Clark, Homer. The Law of Domestic Relations. Vol. I. 2nd ed. 1987.

Frier, Bruce and Thomas McGinn. A Casebook on Roman Family Law.

Nicholas, Barry. An Introduction to Roman Law. Oxford: Clarendon, 1962.