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DIVO´RTIUM divorce.


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. i. p. 865.4; c. Neaer. p. 1362.52, 1365.59). The only Greek states respecting whose laws of divorce we have any knowledge are Athens and Sparta. In both states the law permitted either husband or 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 escape from her husband. At Sparta, it seems, a man might dismiss his wife if she bore him no issue; the recorded instances, however, are those of kings, and private inclination was sacrificed to state policy (Hdt. 5.39, 6.61). The law at Athens allowed a man to divorce his wife without ceremony, simply by his act of sending her out of his house (ἐκπέμπειν, ἀποπέμπειν), upon which she returned to the guardianship of her nearest male relation (Dem. c. Onet. i. p. 868.8; cf. KYRIOS). The husband was then bound to return the dowry which she had brought him, or to pay her interest at the rate of nine obols per mina per month (ἐπ̓ ἐννέα ὀβολοῖς = 18 per cent. per annum, Dem. c. Aph. i. p. 818.17, c. Neaer. p. 1362.52); and in addition to this to provide alimony (σῖτος). It became the duty of the κύριος to enforce these claims, if necessary, by a προικὸς δίκη or a σίτου δίκη (c. Neaer. l.c.; Isae. Or. 3 [Pyrrh.], § § 9, 78). A husband thus dismissing his wife usually did so, as might be expected, in the presence of witnesses (Lys. c. Alcib. 1.28). What became of the children in such a case is not mentioned, but it is probable that they remained with the father. Besides the various motives which naturally incline men to seek a new connexion or break off the old, the Athenian law created artificial grounds of divorce. The heiress (ἐπίκληρος) became the property of the next-of-kin. He, or she, or both of them might be married at the time when the inheritance devolved upon her. In such a case the man was tempted to put away his wife; the wife might be obliged to leave her husband (Isae. l.c. § 64; Dem. c. Eubul. p. 1311.41). Much less repulsive was the rule that proved adultery [p. 1.648]on the part of the wife compelled her husband to divorce her, or himself incur the penalty of atimia (Lex ap. Dem. c. Neaer. p. 1374.87). When, on the other hand, a wife wished to leave her husband, if both parties agreed upon a divorce, no further proceedings were required: mutual consent was sufficient to dissolve a marriage. If the husband objected, she was obliged to appear in person before the archon, and state in writing the grounds of her application ([Andoc.] c. Alcib. § 14; Plut. Alc. 12). She had to conduct her case quite alone, for as she was in her husband's power until judgment was given, no one had a right to come forward as her advocate. It has been maintained that she could be represented by her κύριος, but the notorious case of Alcibiades and his ill-used wife Hipparete, in the passages just cited, leaves little doubt that she could not (Lipsius on Att. Process, p. 512 n. = 414): the expression in Demosthenes (c. Onet. i. p. 868.17, τὴν ἀπόλειψιν ο τ ο ι πρὸς τὸν ἄρχοντ̓ ἀπεγράψαντο, cf. 871.26) probably refers to the register (ἀπογραφὴ) of all divorces, whether made by consent or otherwise, which was kept by the archon. The action thus brought by a woman was called ἀπολείψεως δίκη. Her right to a separation would depend on the treatment she had received [KAKOSIS]; but of the nature of the archon's jurisdiction we know but little. The husband's loss of freedom (i. e. by becoming a prisoner of war and being sold into slavery) is mentioned as affording an absolute claim to a divorce (Thalheim, Rechtsalterth. p. 67 n.).

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. 12.18).

Att. Process, pp. 413-415 =510-513 Lipsius; C. R. Kennedy, Select Priv. Or. of Dem. p. 269 f.; Schömann, Antiq. 1.517, E. T.; Hermann-Blümner, Privatalterth. pp. 252, 262; Thalheim, Rechtsalterth. p. 67.)

[L.S] [W.W]

2. Roman

The word divortium signified generally a separation; and, in a special sense, a divorce or dissolution of marriage. Several authorities (Gel. 4.3; Dionys. A. R. 2.25; V. Max. 2.1-4) state that divorce was unknown at Rome in early times, and that the first instance of divorce occurred in B.C. 233, when Sp. Carvilius Ruga put away his wife on the ground of barrenness. It is said that the act of Carvilius was generally disapproved of (V. Max. 2.1-4). Savigny has discussed the details of this story with his usual acuteness (Verm. Schriften, 5.1-4). It is probable that divorce on account of the misconduct of the wife was in use from a very early period; but the case of Carvilius Ruga may have been the beginning of the lax system of divorce which prevailed towards the end of the free republic and under the empire.

The marriage by which the husband acquired manus over his wife, as well as the later free marriage, was dissoluble; but the marriage of a flamen, which was solemnised by confarreatio, could never under any circumstances be severed (Plut. Romul. 22; Gel. 10.15).

A corresponding form to that by which a marriage had been created was used for dissolving it: thus a marriage entered into by confarreatio was put an end to by a similar ceremony, called diffarreatio (Festus, s. v. diffarr.); if a wife had passed into the manus of her husband by coemptio, she could only be released by a remancipatio, which, according to Gaius, the husband could be compelled to execute (Gaius, 1.137). These formal restrictions on the right of divorce disappeared under the free form of marriage, which did not bring the wife in manum viri. The theory on which Roman marriage was based admits the utmost facility of divorce: the consent and conjugal affection of the parties were regarded as the essential part of a marriage, and this affectio maritalis was necessary for the continuance as well as for the creation of a marriage. Accordingly either party might declare his or her consent to dissolve the connexion. No judicial decree and no interference of any public authority was necessary to dissolve the marriage. A divorce which was brought about by one party renouncing the marriage and not by mutual consent was called a repudium. It was customary for one who renounced a marriage to send a distinct notice or declaration of intention to the other party, and it was doubted in the time of Cicero whether the simple fact of either party marrying again without any such notice having been given was sufficient to constitute a divorce (Cic. Orat. 1.40). The ceremony of breaking the nuptiales tabulae (Tac. Ann. 11.30), 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; but the general practice was apparently to deliver a written notice, and perhaps to assign a reason, though in the case of Paula Valeria mentioned by Cicero no reason was assigned. By the Lex Julia de adulteriis it was required that a repudium should be executed in the presence of seven witnesses, Roman citizens of the age of puberty (Dig. 24, 2, 9; Sueton. Octav. 34). This prevented an adulteress from setting up the pretence of a repudium as an excuse for her conduct.

Not only the wife herself, but also her father, if she was under his power, might dissolve the marriage. This right of a paterfamilias was made practically ineffectual by a decree of the Emperor Marcus. Towards the latter part of the republic and under the empire, divorces became very common. On. Pompeius divorced his wife Mucia for alleged adultery, and his conduct was approved (Cic. Att. 1.1. 2, 18); and Cicero speaks (ad Fam. 8.7) of Paula Valeria as being ready to serve her husband on his return from his province with notice of divorce (cf. Juv. 6.224, and Martial, 6.7). Cicero himself divorced his wife Terentia after living with her thirty years, and married a young woman whom he also divorced (Plut. Cic. 41). Cato the younger 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. Mi. 25). By the Lex Papia Poppaea a freedwoman who had married her patron was prevented from divorcing herself (Dig. 24, 2, 11) so as to be capable of marrying anyone else. [p. 1.649]From an early time penalties were imposed on those who divorced without good cause, and also on those who by their conduct made a divorce necessary.

A man was punished by nota censoria, a woman by loss of dos. There was the retentio dotis propter mores when the divorce was caused by the fault of the wife, and also the retentio propter liberos which was the right of the husband to deduct an additional amount of dos in case there were children of the marriage. The free right of divorce was not taken away by the early Christian emperors, but its exercise except on grounds defined by statute was severely punished. Justinian went further than his predecessors in limiting the legal grounds of divorce. He even punished divorce by mutual consent unless the object of the parties was to live a life of chastity. (Dig. 34, 2; Cod. Theod. 3.16; Cod. 5.17; Wächter, Ueber Ehescheidungen bei den Römern.

[G.L] [E.A.W]

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