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The Woman in the Roman Society. Unit 8

Divorce or: do Roman wives
count their age by the number of husbands?

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  1. 1. Divorce or: do Roman wivescount their age by the number of husbands?
  2. 2. General PrinciplesD. 24.2.1. Paulus, On the Edict, Book XXXV. Marriage isdissolved by divorce, death, captivity, or by any other kind ofservitude which may happen to be imposed upon either of theparties.
  3. 3. How easy?the principle of affectio maritalis: it’s effect on marriageexistencepresumption of marriage?
  4. 4. Maecenas & TerentiaD. 24.1.64. Javolenus, On the Last Works of Labeo, Book VI. A mangave something to his wife after a divorce had taken place, to induceher to return to him; and the woman, having returned, afterwardsobtained a divorce. Labeo and Trebatius gave it as their opinion in acase which arose between Terentia and Mæcenas, that if the divorcewas genuine, the donation would be valid, but if it was simulated, itwould be void. However, what Proculus and Caecilius hold is true,namely, that a divorce is genuine, and a donation made on account of itis valid, where another marriage follows, or the woman remains for solong a time unmarried that there is no doubt of a dissolution of themarriage, otherwise the donation will be of no force or effect.
  5. 5. When Affectio ceases?D. 24.2.3. Paulus, On the Edict, Book XXXV. It is not a trueor actual divorce unless the purpose is to establish aperpetual separation. Therefore, whatever is done or said inthe heat of anger is not valid, unless the determinationbecomes apparent by the parties persevering in theirintention, and hence where repudiation takes place in theheat of anger and the wife returns in a short time, she is notheld to have been divorced.
  6. 6. Form?D. 24.2.2. Gaius, On the Provincial Edict, Book XI. The worddivorce is derived either from diversity of opinion, or because thosewho dissolve their marriage go different ways. (1) In cases ofrepudiation, that is to say, in renunciation of marriage, the followingwords are employed: tuas res tibi habeto “Get yourself your things”or tuas res tibi agito “Look after your things.” (…) (3) It makes nodifference whether the renunciation takes place in the presence orin the absence of the person under whose control one of theparties may be, or of him who is under said control.
  7. 7. Form?!D. 24.2.9. Paulus, On Adultery, Book II. No divorce isvalid unless it takes place in the presence of sevenRoman citizens, who are of age, but for the freedman ofthe party who institutes proceedings for that purpose.We understand the freedman to be one who has beenmanumitted by the father, the grandfather, the great-grandfather, and other ascendants interested in theproceedings above mentioned.
  8. 8. Free Marriages:how far do they go?D. 24.2.10. Modestinus, Rides, Book I. Afreedwoman, who has married her patron, cannotseparate from him without his consent, unless shehas been manumitted under the terms of a trust,for then she can do so even though she is hisfreedwoman.
  9. 9. Freed-Women - reconsidered11. Ulpianus, On the Lex Julia et Papia, Book III. Where the law says:“A freedwoman, who is married to her patron, shall not be grantedthe right to divorce” this is not held to have made the divorceineffective, because marriage is ordinarily dissolved by the Civil Law;therefore we cannot say that the marriage exists, as a separation hastaken place. Again, Julianus says that a wife is not under suchcircumstances entitled to an action to recover her dowry; hence it isreasonable that when her patron desires her to remain his wife shecannot marry anyone else. For, as the legislator understood that themarriage was, to a certain extent, dissolved by the act of thefreedwoman, he prevented her marriage with another, wherefore ifshe should marry anyone else, she will be considered as not married.Julianus, indeed, goes farther, for he thinks that such a womancannot even live in concubinage with anyone except her patron.
  10. 10. (1) The law says: “As long as the patron desires her to remain his wife.” Thismeans that the patron wishes her to be his wife, and that his relationshiptowards her should continue to exist; therefore where he either ceases to be herpatron, or to desire that she should remain his wife, the authority of the law is atan end. (2) It has been most justly established that the benefit of this lawterminated whenever the patron, by any indication of his will whatsoever, isunderstood to have relinquished his desire to keep the woman as his wife.Hence, when he institutes proceedings against his freedwoman on the ground ofthe removal of property, after she had divorced him without his consent, ourEmperor and his Divine Father stated in a Rescript that the party wasunderstood to be unwilling that the woman should remain his wife, when hebrings this action or another like it, which it is not customary to do unless in caseof divorce. Wherefore, if the husband accuses her of adultery or of some othercrime of which no one can accuse a wife but her husband, the better opinion isthat the marriage is dissolved; for it should be remembered that the wife is notdeprived of the right to marry another except where the patron himself desires toretain her in that capacity. Hence, whenever even a slight reason indicates thatthe husband does not desire her to remain his wife, it must be said that thefreedwoman has already acquired the right to contract marriage with another.Therefore, if the patron has betrothed himself to, or destined himself for someother woman, or has sought marriage with another, he must be considered to nolonger desire the freedwoman to be his wife. The same rule will apply where hekeeps the woman as his concubine.
  11. 11. The Attitude towards Divorce
  12. 12. In Law....D. (Hermogenianus, Epitomes of Law) Donations arepermitted between husband and wife in case of divorce; for this oftenhappens either on account of the husband entering the priesthood, orbecause of sterility,D. 24.1. 61. Gaius, On the Provincial Edict, Book XL Or wheremarriage cannot conveniently exist on account of old age, illness, ormilitary service,D. 24.1.62. Hermogenianus, Epitomes of Law, Book II. And for thesereasons the marriage is dissolved with a friendly disposition.
  13. 13. through the eyes of Moralists: who’s to be blamed?Seneca, On Benefits, 3.16.2-3Is there any woman that blushes at divorce now that certainillustrious and noble ladies reckon their years, not by the number ofconsuls, but by the number of their husbands, and leave home inorder to marry, and marry in order to be divorced?  They shrank fromthis scandal as long as it was rare; now, since every gazette has adivorce case, they have learned to do what they used to hear so muchabout.  Is there any shame at all for adultery now that matters havecome to such a pass that no woman has any use for a husband exceptto inflame her paramour?  Chastity is simply a proof of ugliness. Where will you find any woman so wretched, so unattractive, as to becontent with a couple of paramours - without having each hour assignedto a different one? 
  14. 14. through the eyes of Moralists:who’s to be blamed?Juvenal, Satire VI, 220 ff. : If you are honestly uxorious, anddevoted to one woman, then bow your head and submit your neckready to bear the yoke. Never will you find a woman who spares theman who loves her; for though she be herself aflame, she delightsto torment and plunder him. So the better the man, the moredesirable he be as a husband, the less good by far will he get out ofhis wife. No present will you ever make if your wife forbids; nothingwill you ever sell if she objects; nothing will you buy without herconsent. (...) Thus does the tale of her husbands grow; there will beeight of them in the course of five autumns--a fact worthy ofcommemoration on her tomb!
  15. 15. through the eyes of Moralists:who’s to be blamed? Martialis: vi 7.4-5: Since the time the Julian Law came back tolife, since Modesty was ordered to enter the houses, no moreno less have passed thirty lights and Telesilla has marriedalready the tenth husband. The one who marries so manytimes, marries not, she is a legal adulteress. I am less offendedby a simple harlot.
  16. 16. Turia and her reasons for divorceLaudatio Turiae: (31) When you despaired of your ability to bear childrenand grieved over my childlessness, you became anxious lest by retainingyou in marriage I might lose all hope of having children and be distressedfor that reason. So you proposed a divorce outright and offered to yield ourhouse free to another womans fertility. Your intention was in fact that youyourself, relying on our well-known conformity of sentiment, would searchout and provide for me a wife who was worthy and suitable for me, and youdeclared that you would regard future children as joint and as though yourown, and that you would not effect a separation of our property which hadhitherto been held in common, but that it would still be under my controland, if I wished so, under your administration: nothing would be kept apartby you, nothing separate, and you would thereafter take upon yourself theduties and the loyalty of a sister and a mother-in-law.
  17. 17. Apuleius, Apologia, on divorce A widow on the other hand, if divorced, leaves you as she came. Shebrings you nothing that she cannot ask back, she has been anothersand is certainly far from tractable to your wishes; she lookssuspiciously on her new home, while you regard her with suspicionbecause she has already been parted from one husband: if it was bydeath she lost her husband, the evil omen of her ill-starred unionminimizes her attractions, while, if she left him by divorce, shepossesses one of two faults: either she was s o intolerable thatshe was divorced by her husband, or so insolent as to divorcehim. It is for reasons of this kind among others that widows offera larger dowry to attract suitors for their hands. Pudentilla wouldhave done the same had she not found a philosopher indifferentto her dowry.
  19. 19. August’s Law and theobligation to divorce48.5.1 (Ulpian, On Adultery, book 1) The Julian law on adultery wasintroduced by the divine Augustus ...48.5.2 (Ulpian, Disputations, book 8) (2) The crime of pimping isincluded in the Julian law of adultery, as a penalty has been preservedagainst a husband who profits pecuniarily by the adultery of his wife, aswell as against one who retains his wife after she has been taken inadultery. (8) If the husband and the father of the woman appear at the sametime for the purpose of accusing her, the question arises, which of themshould be given the preference? The better opinion is that the husbandshould be entitled to the preference, for it may well be believed that hewill prosecute the accusation with greater anger and vexation ...
  20. 20. D. 48.5.9 (Papinian) Anyone who knowingly lends his house toenable unlawful sexual intercourse or adultery to be committed therewith a matron who is not his wife, or with a male, or who pecuniarilyprofits by the adultery of his wife, no matter what may be his status,is punished as an adulterer ... D. 48.5.11 (Papinian, On Adultery, book 2) (pr.) A matron [22] meansnot only a married woman but also a widow. (1) Women who lendtheir houses, or have received any compensation for (revealing)unlawful intercourse which they know, are also liable under thissection of the law. (2) A woman who gratuitously acts as a procuressfor the purpose of avoiding the penalty for adultery, or hires herservices to appear in the theatre, can be accused and convicted ofadultery under the decree of the senate.
  21. 21. DIVORCEin practice
  22. 22. A ‘Normal’ Divorce:Petronia Sarapias assisted by a kyrios, her brother Caius Petronius Marcellus toCaius Iulius Apolinarios soldier of the first kohort ‘Apamaeian’ of the century ofIulianus, greeting. I declare (homologô) to have received from you four hundreddrachms of silver according to the public standard which I brought you as a dowry,from your own hands retaining the right to the remaining six hundred drachms. Thedocument was written in a double copy without additions and cancellations and beit lawful as if it were deposited in a public registry. In the eighth year of EmperorCaesar Titus Aelius Hadrianus Antoninus Augustus Pius, Pharmouthi 10. I,Petronia Sarapias assisted by a kyrios, the brother Caius Petronius Marcellus amgetting back four hundred silver drachms in the name of my dowry, retaining theright to six hundred drachms, as above. I Gaius Petronius Marcellus have beenappointed kyrios of the sister, and have signed for her as she is illiter
  23. 23. Normal divorceDuring the consulship of Tatianus the most illustrious praefect of the holy praetorium, andof Flavius Symmachus, the most illustrious, on the 18th of Phaophi of the 5th indiction.Aurêlia Allous daughter of Onnôphrios assisted by her mother, Aurêlia Apina from thevillage Nestos of the Arsinoite nome to Aurêlios Êlias, son of Arstôn, from the villageOnnitôn of the same nome. As I, Allous, have lived with you, Êlias, for some time, but it hashappened through some deed of the evil daemon that it came suddenly upon (us?) that(we) being freed from our joint-life, go away; and because of that I, Allous, declare that I donot have any claim against you, Êlias, in regards to our joint-life, and any other written orunwritten debt or demand that may result in a claim or that has been claimed once for evertotally and for all; and that you Êlias have power to contract another marriage withoutbeing reproached for that; and let the divorce be [valid?] and being asked formally (of theabove) I have given my consent. Aurêlia Allous, the above-said assisted by hermotherApina has given [ ???? ] to Amphion [????] Verso: divorce of Allous daughter ofOnnôphrios
  24. 24. A peaceful divorceP. Cairo, Masp. 67121 During the consulship and reign of ourmost pious Lord Flavios Iustinos, the eternal Augustus andImperator, in the year eight, the eighteenth of Thoth, of thepresent seventh indiction. + Aurêlios Isakos son of Iôannes ofmother Kora, a doctor from village Aphroditô in theAntinoopolite nome to Aurelia Tetromnia daughter of Ioannês,till now my wife, from the same village a greeting. Inasmuch as(I) Isakos took you for common married life in hope for the bestand for procreation of children wishing to end peacefully my life(in this marriage?), now however, as an evil daemon broughtmalice to our joint-life, we were separated from each other;and so
  25. 25. A peaceful divorceeach of us (will be able to???) be joined in another marriage orwith another husband or go to a monastery or choose asceticlife with no resistance (of the other partner). And through/because our divorcing neither (can we) sue each other nor asto any equipment brought into the marriage nor as to the dowryor the assigned donationes antenuptiales, nor as to expenseduring the time of marriage, neither in a court nor out of it.Because of this I have been brought to (write) the present deedof divorce, by its means I declare that I have no actio againstyou whatsoever at any time regarding this matter
  26. 26. A peaceful divorce The deed of divorce shall be lawful and secure. And being formally asked I have declared the deed of divorce. It shall be manifest that this contract that has just come into being and written by me is lawful and secure, ??? as so it is the one you have prepared for me and written by [you?] regarding the donationes antenuptiales according to its power. And I have declared everything. Aurêlios Isakion son of Ioannês prepared this deed of divorce and what has been written before conforms to my intentions. I, Aurêlios Komasios son of Phoibammôn bear witness to all this deed of divorce, heard and being executed. I, Aurêlios Komasios son of Phoibammôn bear witness to all this deed of divorce, heard and being executed.
  27. 27. Wives’ complaints: POxy 903Now concerning the insulting allegations he made about me: heshut up his own daughters and mine, along with my fosterdaughters and his agent and his son for seven whole days in hiscellars, and treated his slaves and my slave Zoe violently, [virtually]killing them with blows. He stripped my foster-daughters naked andset fire to them, in complete violation of the law. And he said to thefoster-daughters, Give me everything that belongs to her, and theysaid that they had nothing that belonged to me. To the slaves asthey were being beaten he said, What did she take from myhouse? Under torture they said, She has taken nothing thatbelongs to you; all your property is safe. Zoilus accused himbecause he had locked up his foster-son. He said to Zoilus: Haveyou come on account of your foster-son or to speak on behalf of acertain woman?
  28. 28. Wives’ complaints: POxy 903He swore in the presence of the bishops and his own brothers, from nowon I shall not hide all my keys from her and I shall not attack her and insulther from now on. (Added above the line) He trusted his slaves but not me.He made a marriage agreement, and after his contract and his oaths hehid the keys from me again. When I went to the church in Sambatho, healso shut the outside doors and said about me Why did you go tochurch? He made many abusive comments to my face, and furtherinsulted me by speaking through his nose. Of the public grain in my namevalued at 100 drachmas he did not pay one artaba. He locked up theaccounts after he got hold of them and said, Put down the price of thegrain as 100 artabas, but he paid nothing, as I said. He told his slaves,Bring reinforcements so they can lock her up
  29. 29. Wives’ complaints: POxy 903Choous his assistant was sent to prison and Euthalmus posted bailfor him, but ran short of money. I took a little extra and gave it toChoous. When he met me in Antinoöpolis when I had my bathingbag containing my ornaments, he also said to me, If you havesome money with you, I shall take it because of what you gave toChoous as bail for his imprisonment. All this is verified by hismothers testimony. Also he kept on tormenting my soul about hisslave girl Anilla, both in Antinoöpolis and here. He said: Throw outthis slave since she knows what she has taken, perhaps becausehe wished to implicate me and use it as an excuse to take all mypossessions. I did not put up with her being sent away. And he kepton saying that a month from now Im going to take a mistress formyself. God knows that this is true.
  30. 30. P. Oxy 3581[To Flavius] Marcellus, tribune ... peace, from Aurelia Attiaena from the city of the Oxyrhynchites. Acertain Paul, coming from the same city, behaving recklessly carried me off by force and compulsionand cohabited with me in marriage a female child by him ... taking him into our house ... his vilecourse of action and all my property leaving me, with my infant daughter too, in ... he cohabitedwith another woman and left me bereft. After some time again he beguiled (me) through presbytersuntil I should again take him into our house, agreeing in writing that the marriage was abiding andthat if he wished to indulge in the same vile behaviour he would forfeit two ounces of gold, and hisfather stood written surety for him. I took him into our house, and he tried to behave in a way thatwas worse than his first misdeeds, scorning my orphan state, not only in that he ravaged my housebut when soldiers were billeted in my house he robbed them and fled, and I endured insults andpunishments to within an inch of my life. So taking care lest I again run such risks on account of him,I sent him through the tabularius a deed of divorce through the tabularius civitatis in accordance withimperial law. Once more behaving recklessly, and having his woman in his house, he brought withhim a crowd of lawless men and carried me off and shut me up in his house for (not?) a few days.When I became pregnant, he abandoned me once more and cohabited with his same so-called wifeand now tells me he will stir up malice against me. Wherefore I appeal to my lords staunchness toorder him to appear in court and have exacted from him the two ounces of gold in accordance withhis written agreement together with such damages as I suffered on his account and that he shouldbe punished for his outrages against me. (2nd hand) I, Aurelia Attiaena, presented this.
  32. 32. Terrible wivesP. Heid. III 237 (3rd or 4th century?) To Claudios Alexandros (?) centurionfrom N.N son Panetbeous, public farmer, from the village Theadelphia. Thewife with whom I was living [N.N, from whom] I have begotten a childbecoming dissatisfied about her marriage with me, [seized] an opportuneabsence of mine, and left my house… months ago, without so-called[divorce?], taking away her own goods and many of mine, among whichwere a large white unfulled cloak and oxyrhinchite pillow, and a stripeddilassion (a garment), materials for two chitons, and farmer’s workingimplements. And although i have many times sent to her seeking to recovermy things, she has not responded or returned them. And I am supplying toher the cost of support of our child. Besides, having now learnt that oneNilos son of Syros from the same village lawlessly taken her and marriedher, I submit (this petition) and request that she and Nilos may summonedbefore you in order for me to be able to obtain legal redress and get backmy things and be helped. Farewell.
  33. 33. Terrible wivesP. Lond. V 1651: During the consulship of our Lord Julian (the Apostate) theEternal Augustus for the fourth time and Fl. Allousthios, the most illustriouspraefect of the holy praetorium.To Aurelious Hermeias son of Heliodôs firstcouncilor and acting strategos of the Hermopolis, the most illustrious city,from Aurelios Dios son of Apollon of the same city. Since the month ofMesore my wife Hermione having waited for my absence to an away villagetook away all things which were in our house among which were debtsdocuments and committed an illegal exit. She sent many times… When it allturned out that …. ???? and above all she did not give back the deeds ofsale of my household. Therefore I, not being able to sit in peace, submit toyour Sagacity these letters, asking that she be brought from all places andkept in safety until the happy arrival of my lord most eminent praefectKyrillos Telephios Hierokleus as I am thinking of making a petition about allthat. Be well!In the consulate of the above, Pharmouthi 25. Aurelios Dios son of Apollonhas submitted. Aurelios Olkueis son of Pathermouthios has written for himas he doesn’t know the letters.
  34. 34. divorcing commoners“A copy from the record of census returns from the 28th year, from sheet 165. To Ammonius,str(ategus) in the Arsinoite nome. From Didymos son of Kallinikos, grandson of Didymos andson of Taphorsaeis, metropolitan and registered in the Gymnasium quarter. In the Moërisquarter I own a sixth part of a house in which I declare myself and my family for the census inthe 14th year. And I am Didymos, the above-mentioned, recorded my current wife [Sarapias,daughter of S]abeinus, grand-daughter of Kronion of mother Eudaimonis, aged 43, withoutspecial body moarks who in the previous census declared herself in the Syrian quarter and [myson Di]dymos, born by my former wife Hermione, daughter of an unknown father and of Herois,aged 10, recorded on the birth-list and the [seven] slaves that I Didymos own: Euprepos (?) son[of NN, aged ??], Sa[rap]ammon son of the s[ame] aged 29, [NN, son of Tapeis aged ?]9 andthe slave-woman Alexandra aged 49, bought from [NN]. The slave[s owned by my wife, whom Imarried] in the present 28th year: [Elpis], bought from downstream, [aged 12 with a spot] on theleft shin and one-half of the slaves mentioned below: Isis alais Memphis daugher of [NN aged?]and her son Sarapammon aged 6, not re[gistered in the bir]th-lists. The other [half] of thesethree slaves phas been declared in the Syrian [qu]arter by Kronia and [Ta]orsis and my sonXenophon [aged ?] born by my divorced [wife NN] citizen of Antinoopolis [having beendeclared] with her mother in Antinoopolis. Her children [not mine[ but her divorced [husband’s,NN, alias –onus], are declared with their father [in ?]. I accordingly hand in this P. Fam. Teb. 48 Sarapias is declared alone, as a divorcee.
  35. 35. Tyrannis ! Isidora Iulius ! Herodes "lives with the father# <$> Sarapias <$> Philantinoos $ Herakleia ! Herodes ! ArsinoeDidymos <$> Hermiones/Kallinikos Didymos <$> N.N. <$> A Husband Xenoph"n Some children "lives with the mother# "live with the father# <$> ! divorced bold ! Didymos% wives italics ! chidren of Didymos