Marriage in ancient Rome was in principle simply a situation where a man and a woman formed the intention to be married to one another. The legal maxim of consensus facit nuptias (= agreement creates the marriage) obtained, and no requirements had to be met in order to render the union a legal one. All that was required was for the couple to live together with the affectio maritalis (= both regarding the other as spouse). The notion of marriage was in principle monogamous for the Romans. The reason for this was simply that it was important for the husband to have children, and more specifically male offspring, for several reasons.
In the first place Roman beginnings were agrarian, and before slavery became a widespread institution, the labour force had to be supplied from the family, and more probably the extended family. The gender distinction in respect of work was always rigidly maintained. There was work men did, and work women did, and the two did not overlap. This was not unique to Rome, and even today it is a distinction that is often rigidly maintained in certain societies.1 Furthermore, the men would also see to the safety of the homestead and the livestock and crops, and in times of war, the men did the fighting, often with disasterous consequences leading to times when men were a very scarce commodity.
Another important reason why male children were specially hoped for, was the fact that Romans believed that the persona of the deceased was carried on by his heir. The persona was at the core of the Roman notion of an individual, in the sense that the persona was the embodiment of all that an individual had achieved, and what his family and forbears had achieved before him. Initially it was extremely important for any head of a household (paterfamilias) to beget a male heir, and even more important was the fact that the male heir had to be legitimate. For this reason the Romans never adopted the usage of so many Mediterranean peoples of the time of allowing a man to have multiple wives, or the converse, of allowing a woman to have multiple husbands. In this way there could not be confusion regarding who was the father or which child was to be regarded as first born or senior in rank as there was only one legitimate mother at any given time.2 The importance of a legitimate male heir was later diluted, and adoption became an important institution of law, Octavian (later Augustus) for example being adopted by Julius Caesar in the latter’s will upon Caesar’s death. The fact that adoption became so important an institution is indicative of the great significance Romans attached to the perpetuation of the persona.
Like all institutions of the strict ius civile (= Roman civil law), the right to conclude a Roman marriage, even if it was a simple affair seen from a legal viewpoint, only belonged to Roman citizens, or persons who had been granted the ius conubii (= the right to enter into a Roman marriage). This entailed that if you were not a Roman, you may nonetheless have received the right to marry in terms of Roman law, for example where a neighbouring tribe had been conquered and had been granted certain civil rights by their Roman conquerors. It was only from a marriage contracted3 in terms of Roman law that children (and of course the wife) would fall under the patriapotestas (= father’s legal rights over his family and the entire estate of the family), and which would give rise to rights of succession.
Marriage was initiated by a formal betrothal (sponsalia), during which formal promises (sponsio) of a sacral nature were made by the intended spouses, and later often gifts (especially of money) were exchanged, the so called arrha sponsalitia (which had to be returned upon marriage not proceeding, being intended only with a view to marriage). Initially breaking off of the betrothal was not met with any liability, but later the arrha would be forfeited by the party breaking the betrothal without good grounds.
Roman law of persons distinguished between people (of either sex) who were sui iuris or alieni iuris, in other words, who were free of any other paterfamilias’ patriapotestas, and therefore a person capable of establishing their own patriapotestas over a household, or who stood under the patriapotestas of another (the paterfamilias, head of the family). Being sui iuris entailed the right to engage in commerce (ius commercii), to conclude a Roman marriage (ius conubii), (for men) to vote in the assemblies (ius suffragii), (again for men) to enter into public office etc. A woman sui iuris obviously did not have all the competencies of a man, but she had substantial freedom to deal with her own estate, and could not be forced to enter into the status of an alieni iuris, unless she suffered a diminution of her status (capitis diminutio) for example due to being convicted of certain crimes (such as adultery or murder).4
A woman who married a man could choose the form of marriage she wished to enter into, and in this way could to a certain extent determine whether she would fall under the manus (=hand, power) of her husband, or not. Thus, it was said, a woman married cum manu or sine manu (= under the hand / power (of her husband), or without the hand / power (of her husband)). Normally a woman who had become sui iuris on the death of her paterfamilias without a male heir to assume the position, would choose to retain her status as a “free” person, and opt to marry sine manu. Obviously, only women who were sui iuris before marriage could remain so. A woman could not attain the status of a sui iuris by virtue of marriage. There was a catch, though. In order for a woman sui iuris to avoid becoming alieni iuris after concluding a marriage sine manu, she had to absent herself from her husband’s roof for three nights out of every year. A woman who was alieni iuris prior to her marriage, falling under the patriapotestas of her father of a brother (or other male relative), could also choose to marry sine manu, and would then remain under the patriapotestas of her male family member.
The most formal and ancient was the marriage by way of confarreatio, a form of marriage only available to patricians, and highly formal with all sorts of ritual, amongst others the wife wearing an orange wedding gown, and being carried over the doorstep by her husband. Sacred spelt cakes were exchanged together with vows, and in all probability, priests performed the necessary ceremonies. The next morning, a sheet of the nuptial bed was publicly displayed outside the house as proof (hopefully) of consummation of the marriage. This form of marriage always resulted in the wife falling under the manus of her husband, even if she was sui iuris before the marriage. The result was that the wife’s estate then fell under the sole control of her husband, her paterfamilias.
The Romans also recognised the institution of concubinage (concubinatio), where a man and a woman lived together as husband and wife, but were not married. This would typically happen where the woman was sui iuris but the man not a citizen, or where the woman did not have the ius conubii, or where there was some legal impediment to their marriage (other than prohibitions of consanguinity in which case the union would be incestuous and totally prohibited).
While the affectio maritalis lasted, the marriage subsisted. Divorce was a simple affair, in that the loss of the intention to remain married effectively brought the marriage to an end. In classical times, the spouse desiring divorce would simply write the other a letter to this effect. It depended on whether a woman was sui iuris or not, whether she could divorce in this way. If she stood under the patriapotestas of a male relative, he would institute divorce proceedings, otherwise the woman would probably approach the male relative under whose patriapotestas she would have been but for her marriage, and ask him to institute proceedings against the husband.
Bar situations of adultery by the wife, any dowry (dos) usually had to be returned, although certain deductions were allowed, e.g. for any children (who remained with the father normally), or misconduct by the wife that gave rise to the divorce. Even in early law, the wife or her paterfamilias was at liberty to stipulate for the return of the dowry in case of divorce (see Risk in the Roman law of sale).
*Gratitute must be expressed for the suggestions made by jjen, and all her comments have been incorporated.
1 For instance, among many indigenous peoples in Africa it is forbidden for women or even female children to touch cattle.
2 Among many of the indigenous African peoples, the head of the family is at liberty to decide which one of his several wives will be the senior wife, which would immediately raise her oldest son to the position of principal heir, despite the fact that he may be younger than another of his father’s sons by a different wife not so honoured. Each wife married by a man forms a house. Some tribes, however, always regard the first wife as the senior wife, affiliating subsequent wives to her house, or to one of the junior houses according to strict rules. Where the senior wife’s house fails to produce a son, the oldest son of one of the houses affiliated with the senior house will be the principal heir, even though other houses more senior but not affiliated to the most senior house may have older sons.
3 Which does not entail that marriage itself is a contract. It is not. Agreeing to enter into matrimony (i.e. an engagement) constitutes a contract for purposes of the law, but marriage as such is an affair of status.
4 Men could also be ordered to suffer capitis diminutio.