Marriage was an integral part of traditional ancient roman
way of life, thus it is no surprise that laws pertaining to the subject were
constantly changing and progressing, particularly from the classical era to
that of late antiquity. Most scholarly sources available to us today are
focused on marriage law in the classical era, and little is said about the development
that marriage law underwent throughout late antiquity. Our main source of
information when studying such a subject is the Theodesian code; a compilation
of laws ordered by emperor Theodosius 2 which compiles all the laws enacted by
roman emperors starting from Constantine 1, up until Theodosius himself. Such a code allows us to gain an insight into
the changes that took place in the law throughout ancient roman times, thus
giving us the ability to compare and contrast accordingly. As we will come to
find out, there are a number of factors which had an impact on the changes that
took place in marriage law such as those being environmental or economic,
however it can be said that no other factors played as big of a role as the
introduction of Christianity in the roman empire.
It is important to
note that when studying roman marriage law, most of the records at our disposal
deal with marriage law as it existed amongst the elite classes of society.
Despite the fact that marriage law did touch upon the subject of marriage law amongst
the lower classes, such as for example marriage relating the slaves, soldiers
and clerics, it is difficult to determine the extent to which these ancient
roman customs were enforced amongst the lower classes of society. The essence
of roman law as it existed traditionally boils down to a simple private
agreement between the two parties to be married, irrespective of the betrothal,
ceremonies or festivities which which precede the marriage procedure. This will
be explored in further detail in the section relating to marriage consent. In
order for a marriage to be declared valid in ancient roman times, otherwise
known as iustae Nuptiae, there was a criteria which needed to be satisfied.
Note that the requirements which constituted a valid marriage frequently
changed over time depending on the emperor in power.
Firstly, individuals to be married couldn’t be too closely
related to one another. For most of the ancient roman period, incest was a
punishable crime, and thus marriages which took place between individuals who
were second cousins or closer relatives were prohibited from marrying one
another. There was a brief concession to this law during the reign of emperor
Claudius, who enacted an exception to the law which permitted the marriage
between an uncle and his niece; a law known to have been introduced in order to
allow him to marry his brother’s daughter. This law was later reversed by
emperors Constantantius and Constans, who went as far as to execute anyone who
breached this law.