DIVO´RTIUM
DIVO´RTIUM divorce.
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. 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 ὑ 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]
