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p418 Divortium

Article on pp418‑419 of

William Smith, D.C.L., LL.D.:
A Dictionary of Greek and Roman Antiquities, John Murray, London, 1875.

DIVOR′TIUM, divorce.

1. Greek. The term for this act was ἀπόλειψις or ἀπόπεμψις, the former denoting the act of a wife leaving her husband, and the latter that of a husband dismissing his wife (Dem. c. Onet. p865, c. Neaer. pp1362, 1365). The only Greek states respecting whose laws of divorce we have any knowledge, are Athens and Sparta. In both states the law, it appears, permitted both husband and wife to call for and effect a divorce, though it was much easier for a husband to get rid of his wife than for a wife to get rid of her husband. The law at Athens allowed a man to divorce his wife without ceremony, simply by his act of sending her out of his house (ἐκπέμπτειν, ἀποπέμπτειν), but he was bound to restore to her the dowry which she had brought to him, or to pay her the interest of nine oboli per drachmaa every month, and in addition to this, to provide for her maintenance (Demosth. c. Neaer. p1362). It would, however, seem that a husband thus dismissing his wife, usually did so in the presence of witnesses (Lysias, c. Alcib. p541). What became of the children in such a case is not mentioned, but it is probable that they remained with the father. If, on the other hand, a wife wished to leave her husband, she was obliged in person to appear before the archon and to deliver up to him a memorial containing the reasons why she wished to be divorced (Plut. Alcib. 8). She had to conduct her case quite alone, for as she was in her husband's power so long as the verdict was not given, no one had a right to come forward and plead her case. If both parties agreed upon a divorce, no further proceedings were required, mutual consent being sufficient to dissolve a marriage. But if one party objected, an action (ἀποπέμψεως or ἀπολείψεως δίκη) might be brought against the other: the proceedings in such a case, however, are unknown (Heffter, Athen. Gerichtsverf. pp250, 414; Meier, Att. Proc. p413, &c.).

At Sparta, it seems, a man might dismiss his wife, if she bore him no issue (Herod. V.39, VI.61).

Charondas, in his legislation at Thurii, had permitted divorce, but his law was subsequently modified by the addition, that if divorced persons should wish to marry again, they should not be allowed to marry a person younger than the one from whom he (or she) had been separated (Diod. XII.18).

A woman, after her divorce, returned to the house of her father, or of that relative who was under obligation to protect her if she had never been married at all. In reference to her he was her κύριος (Demosth. c. Neaer. p1362).

[L.S.]

2. Roman. The word divortium signified generally a separation, and, in a special sense, a dissolution of marriage. A Roman marriage was dissolved by the death of the wife or husband, and by divortium in the lifetime of the husband and wife.

The statement of Plutarch (Romul. 22) that the husband alone had originally the power of effecting a divorce may be true; but we cannot rely altogether much on such an authority. In the cases of conventio in manum, one might suppose that a woman could not effect a divorce without the consent of her husband, but a passage of Gaius (I.137) seems to say, that the conventio in manum did not limit the wife's freedom of divorce at the time when Gaius wrote (Böcking, Instit. I.229 n3). The passage of Dionysius (Antiq. Rom. II.25), in which he treats of marriage by confarreatio, declares that the marriage could not be dissolved.

As the essential part of a marriage was the consent and conjugal affection of the parties, it was considered that this affection was necessary to its continuance, and accordingly either party might declare his or her intention to dissolve a marriage. No judicial decree, and no interference of any public authority, was requisite to dissolve a marriage. Filiifamilias, of course, required the consent of those in whose power they were. The first instance of divorce at Rome is said to have occurred about B.C. 234, when Sp. Carvilius Ruga put away his wife (A. Gell. IV.3, XVII.21; Val. Max. II.1 §4) on the ground of barrenness: it is added that his conduct was generally condemned. The real meaning of the story is explained by Savigny with his usual acuteness (Zeitschrift, &c. vol. V p269).

Towards the latter part of the republic, and under the empire, divorces became very common; and in the case of marriages, where we assume that there was no conventio in manum, there was no particular form required. Cn. Pompeius divorced his wife Mucia for alleged adultery, and his conduct was approved (Cic. ad Att. I.12, 18); and Cicero speaks of Paula Valeria (ad Fam. VIII.7) as being ready to serve her husband, on his return from his province, with notice of divorce (compare Juv. VI.224, &c.; Mart. VI.7). Cicero himself divorced his wife Marcia, that his friend Hortensius might marry her and have children by her; for this is the true meaning of the story (Plut. Cat. Min. 25). If a husband divorced his wife, the wife's dos, as a general rule, was restored [Dos]; and the same was the case when the divorce took place by mutual consent. As divorce became more common, attempts were made to check it indirectly, by affixing pecuniary penalties or pecuniary loss on the party whose conduct rendered the divorce necessary. This was part of the object of the lex Papia Poppaea, and of the rules as to the retentio dotis, and judicium morum. There was the retentio dotis propter liberos, when the divorce was caused by the fault of the wife, or of her father, in whose power she was: three-sixths of the dos was the limit of what could be so retained. On account of matters morum graviorum, such as adultery, a sixth part might be retained; in the case of matters morum leviorum, one eighth. The husband, when in fault, was punished by being required to return the dos earlier than it was otherwise returnable. After the divorce, either party might marry again (Sueton. Aug. 34).

By the lex Papia Poppaea, a freedwoman who had married her patronus could not divorce herself; there appears to have been no other class of p419persons subjected to this incapacity (Dig. 24 tit. 2 s11).

Corresponding to the forms of marriage by confarreatio and coemtio, there were the forms of divorce by diffarreatio and remancipatio. According to Festus (s.v. Diffarreatio), diffarreatio was a kind of religious ceremony so called, "qui fiebat farreo libo adhibito," by which a marriage was dissolved; and Plutarch (Quaest. Rom. 50) has been supposed to allude to this ceremony in the case of a divorce between the flamen dialis and his wife. It is said that originally marriages contracted by confarreatio were indissoluble; and in a later age, this was the case with the marriage of the flamen dialis (Gell. X.15), who was married by confarreatio. In the case referred to by Plutarch, the emperor authorised the divorce. A marriage by coemtio was dissolved by remancipatio (Festus, s.v. Remancipatam). In other cases, less ceremony was used; but still some distinct notice or declaration of intention was necessary to constitute a divorce: the simple fact of either party contracting another marriage was not a legal divorce (Cic. Orat. I.40). The ceremony of breaking the nuptiales tabulae (Tacit. Ann. XI.30), or of taking the keys of the house from the woman and turning her out of doors, were probably considered to be acts of themselves significant enough, though it may be presumed that they were generally accompanied with declarations that could not be misunderstood. The general practice was apparently to deliver a written notice, and perhaps to assign a reason. In the case of Paula Valeria, mentioned by Cicero, no reason was assigned. By the Lex Julia de Adulteriis, it was provided that there should be seven witnesses to a divorce, Roman citizens of full age (puberes), and a freedman of the party who made the divorce (Dig. 24 tit. 2 s9).

Under the early Christian emperors, the power of divorce remained, as before, subject to the observance of certain forms. Justinian restricted the power of divorce, both on the part of the husband and the wife, to certain cases, and he did not allow a divorce even by the consent of both parties, unless the object of the parties was to live a life of chastity; a concession made to the opinions of his Christian subjects.

The term repudium, it is said, properly applies to a marriage only contracted [Matrimonium], and divortium to an actual marriage (Dig. 50 tit. 16 s101, 191); but sometimes divortium and repudium appear to be used indifferently. The phrases to express a divorce are, nuncium remittere, divortium facere; and the form of the words might be as follow — "Tuas res tibi habeto, tuas res tibi agito." (Cic. Phil. II.28; Plaut. Amphit. III.2.47, Trinum. II.1.43). The phrases used to express the renunciation of a marriage contract were, renuntiare repudium, repudium remittere, dicere, and repudiare; and the form of words might be, "Conditione tua non utor." (Dig. 24 tit. 2; Ulp. Frag. VI; Heinecc. Syntagma; Cod. 5 17 and 24; Rein, Das Römische Privatrecht; and as to the later Roman Law, Thibaut, System, &c. 9th ed.).

[G.L.]


Thayer's Note:

a 9 oboli per drachma: So the text of the article. This must surely be some kind of mistake, however: there were 6 obols to the Attic drachma; this would be a rate of 150% a month.

Two possible emendations: 9 lepta per drachma (a rate of 9/336 = 2.68% a month, reimbursing the dowry in just over three years), or 9 obols per mina (a rate of 9/600 = 1.5% a month, which would reimburse it in five and a half years). Even these figures seem high to me, frankly: if this figure matters, you should check the primary source — as always.


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