Divortium
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 (Demosth.
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 (
Herod.v. 39; vi. 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. (See
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—18 per cent. per annum; and in addition to this to provide alimony (
σῖτος). A husband thus dismissing his wife usually did so, as might
be expected, in the presence of witnesses (
c. Alcib. i. 28). What became of
the children in such a case is not mentioned, but it is probable that they remained with the
father. Adultery on the part of the wife compelled her husband to divorce her, or himself
incur the penalty of atimia (Lex
ap. Demosth.
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 (
Alcib. 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 Hippareté, in the passage just cited,
leaves little doubt that she could not. The action thus brought by a woman was called
ἀπολείψεως δίκη. Her right to a separation would depend
on the treatment she had received (see
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.
2. Roman
The word
divortium signified generally a separation; and, in a special
sense, a divorce or dissolution of marriage. Several authorities (
Gell.
iv. 3;
Dionys. ii. 25) 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 (Val. Max. ii. 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 solemnized by
confarreatio, could never under
any circumstances be severed. See
Matrimonium.
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
(i. 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 admitted 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 connection. 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. i. 40).
The ceremony of breaking the
nuptiales tabulae, or of taking the keys of
the house from the woman and turning her out of doors, was probably considered to be an act
of itself significant enough; but the general practice was apparently to deliver a written
notice, and perhaps to assign a reason. By the Lex Iulia
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. xxiv. 2, 9). This
prevented an adulteress from setting up the pretence of a
repudium as an
excuse for her conduct. See
Adulterium.
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. Cn. Pompeius divorced his wife Mucia for alleged adultery, and his
conduct was approved (
Ad Att. i. 12, 18); and Cicero speaks (
Ad
Fam. viii. 7) of Paulla Valeria as being ready to serve her husband on his return
from his province with notice of divorce. Cicero himself divorced his wife Terentia after
living with her for thirty years, and married a young woman whom he also divorced. 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 (
Cat. Min. 25).
Maecenas put away his wife Terentia so often that the Roman wits said that he had been a
hundred times married, and always to the same woman; Sempronius Sophus divorced his wife
because she had once been to the public games without his knowledge. Seneca declared that
there were women at Rome who reckoned the years by their husbands rather than by the consuls.
Juvenal mentions one who had had eight husbands in five years; and Tertullian sums up the
prevailing practices epigrammatically in the sentence, “The fruit of marriage is
divorce” (
Apol. 6). By the Lex Papia Poppaea a freedwoman who had married her
patron was prevented from divorcing herself (
Dig. xxiv. 2, 11) so as to be
capable of marrying any one else. 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 (q. v.). 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 de fined 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. iii. 16;
Cod. v. 17). See Lecky,
Hist. of European Morals, ii. pp. 304-308; Wächter,
Ueber
Ehescheidungen bei den Römern; Bader,
La Femme Romaine
(Paris, 1877); Friedländer,
Sittengeschichte Roms, ch. v.
(6th ed. Leipzig, 1888);
Baecker, Le Droit de la Femme dans
l'Antiquité (1880).
