Some Effects of Marriage

Some Effects of Marriage

Similarly, in Eastern provinces, women are found bearing the titles of magistracies and priesthoods, sometimes apparently in their own right; in some instances at least, they are so designated because their husbands are holding those offices. The offices themselves, however, had lost real executive importance and become mainly a vehicle for the bestowal of patronage and bounty in the local community.2

A wife was also legally regarded as domiciled in the same municipality or province as her husband or, in the case of a widow, late husband.³

Maintenance

A wife had no legal claim to maintenance by her husband. Usually, she brought with her into marriage a dowry which could be regarded as a contribution from her side to their joint expenses, but a dowry was not obligatory, and there does not seem to have been any legal obligation on the husband to use it for her maintenance.

In a free marriage, probably the wife’s only remedy against a non-maintaining husband was divorce. This seems likely from the fact that our only evidence for a procedure to obtain maintenance concerns a situation in which divorce was, for a particular reason, excluded. ‘Suppose’, Ulpian says, ‘a wife has gone mad and her husband does not want to dissolve the marriage.’ The significance of this is that the wife, being mad, cannot divorce her husband (Ulpian seems to assume that her pater is dead). The husband is actuated by shrewdness (calliditate); he wants to hang on to the dowry. If he is clearly not looking after his wife, then the mad woman’s keeper (curator) or her relatives (cognati) can appeal to the magistrate, to have the husband compelled to give his wife maintenance and medical treatment and all the care that it is seemly (decet—not, note, ‘obligatory’) for a husband to give his wife in proportion to the dowry.4 The inference is that, if there was no dowry, he could not be required to provide anything; but, if there was no dowry, this neglectful husband would presumably have no motive for retaining his wife.

In practice, of course, husbands did usually maintain their wives. The lawyers shed incidental light upon domestic arrangements. Questions were bound to arise from time to time—particularly upon divorce, or the death of either partner—about the legal ownership of items of property or sums of money. Since, by customary law, gifts between husband and wife were invalid,⁵ lawyers could often be called upon to advise on what should or should not be regarded as a valid gift. Even so, we find that a two-way transmission is often envisaged. Husband and wife might allow each other the use of each other’s clothing or slaves, or either might live in the other’s house free of charge. A husband might give his wife wool to make herself some clothes, though lawyers could not agree whether in that case the clothes belonged to him or her. She could use his slaves, gratis, to make up her own wool into clothes for herself; if the clothing was for him, he should pay her for the wool The wife might have slaves or animals which were in usu communi, kept for common use, and the husband could not, it was thought, require his wife to refund any money he spent on their upkeep. Sometimes, cash changed hands. A husband might give his wife travelling expenses for a journey to be undertaken on his behalf, and that money was not recoverable. The implication is that—in the eyes of the law at least—any other trips would have to be made at the wife’s own expense.⁶

Some husbands made their wives a yearly or monthly allowance. Ulpian thought that valid, so long as it did not exceed the revenue of the dowry. Sometimes the husband and wife would agree that she should use her dowry to maintain herself and her slaves. Husband and father-in-law might specifically agree the question of maintenance between them before the marriage.⁷

A wife who brought a large dowry might feel justified in putting pressure on her husband to keep her in a correspondingly lavish style. In Plautus’ Aulularia, a nagging wife is represented as making her expectations clear: ‘I brought you a dowry far bigger than the money you had; so it’s fair that I should be given purple clothes, gold jewellery, slave-girls, mules, grooms, footmen, pages and a carriage.’ On the other hand, when a (relatively) poor friend’s daughter married well, Pliny seemed to think it natural that her family and friends, not her husband, should provide the means for her to be dressed and attended in the style to which her husband was accustomed.⁸

There were occasions in the year when a Roman husband liked to give his wife presents. Her birthday was one. The first day of March, the festival of the Matronalia, was another. Legal opinion was that only a moderate gift was permissible. However, it was all right for him to give his wife money for the general enhancement of her life-style. So, she might be given money to spend on delicacies (in opsonio), or perfume, or to feed her own personal slave staff, ‘because she does not appear to have been made wealthier’ by such a gift (though if a husband wanted to be awkward and demand payment for anything he spent on the upkeep of his wife’s slaves, Pomponius thought he was entitled to do so).9

Gourmet foods, perfumes and personal servants were the little luxuries of life. It could normally be taken for granted that the wife could avail herself of the furnishings in the house and share in the ordinary domestic diet of the household. To maintain their ordinary standard of living, widows were often left as legacies household goods (supellex) and provisions (penus), the latter of which might be a fixed amount or an annual allowance. Jurists’ comments give us an idea of their nature and extent.

Supellex included the basic furniture, pots and pans, crockery and household textiles belonging to the pater and intended for general household use. Paul gives a representative list which includes tables, seats, beds (‘even inlaid with silver’), mattresses, covers, water-pots, basins, candelabra and lamps. He was doubtful whether coverlets should properly be classed with household goods, like pillows, or counted as clothing. Such things as clothes or books, or the chests and cupboards used to contain them, were not included (presumably because their use was personal, not general); for the same reason Alfenus excluded writing tablets and notebooks. There was some discussion on the propriety of including items made of particularly costly materials (and presumably not separately specified in a will). Paul and Papinian admit furniture partly or wholly of silver and even gold, and crystal vessels, but are doubtful about silver tableware. Modestinus reports a case where the opinion was given that anything silver among the furniture was to be included in the bequest, but not the tableware, without separate proof that the husband had intended the wife to have it. Celsus, writing in the latter part of the first century A.D., looks back to a less luxurious age:

Of course, the jurists are writing about the appurtenances of the homes of the wealthy; recourse to law over humble furnishings was less likely.¹⁰

Penus¹¹ was defined by the great Republican jurist Q.Mucius Scaevola as those things eatable or drinkable which had been procured for the use of the pater or his wife or children or the household; some jurists added also his friends and clients and ‘those about him’ (i.e., enough to allow for some entertaining) and the domestic animals. It was agreed that basic foodstuffs were included, such as grain, vegetables, oil and wine, though there was some hesitancy about honey, garum (fish relish) and seasonings and flavourings such as herbs and spices. Some added wood and firing (presumably for cooking) and even incense and wax candles. There was argument about perfumes and writing paper: Ulpian wanted to include only writing paper for household accounts. Containers were excluded; obviously, liquids had to come in containers, but the empties should be returned. Sometimes, apparently, the legacy might be in the form of a sum of cash, for the purchase of provisions.

However much lawyers might solemnly discuss the precise content and extent of general legacies of penus and supellex, it may be assumed that in her husband’s lifetime the wife would have had the free use of all the sorts of things specified, as well as some measure of control over their management and use, in her role as housekeeper.12

Separate Property

A wife in manu had no property of her own, and anything given or bequeathed to her was absorbed in her husband’s property.¹³ Any property a woman (sui iuris) owned before entering a marriage with manus went to her husband, but was reckoned, Cicero tells us, as dowry, and so presumably was liable to be returned at the end of the marriage.¹⁴ A wife in potestate also had no property of her own, during her father’s lifetime. The father might assign the husband additional property, over and above the dowry, for his daughter’s support, but apparently with the proviso that it should not, as the dowry was, be regarded as subject to possible claims for retention by the husband at the end of the marriage. A married daughter who became sui iuris might be bequeathed this property; even if she was not, Papinian thought she had a claim to it.¹⁵

Women sui iuris could have property of their own. Although it was entirely theirs, they sometimes chose to have the administering of some, or all, of it done by their husbands, particularly of property which they contributed for the running of the household. The arrangements might be very formal, with an inventory, and the husband required to render account. This sort of practical arrangement probably goes back to the early days of free marriage. It can be seen that it might lead to friction. Thus the elder Cato (no advocate of female independence) in his speech against the proposal of the lex Voconia (169 B.C.) brings it in as the crowning indignity which the husband of a wealthy wife might have to face:¹⁶