KUEFLER, The Marriage Revolution in Late Antiquity - The Theodosian Code and Later Roman Marriage Law

Journal of Family History
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The Marriage Revolution in Late Antiquity: The Theodosian Code and Later Roman
Marriage Law
Mathew Kuefler
Journal of Family History 2007; 32; 343
DOI: 10.1177/0363199007304424
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THE MARRIAGE REVOLUTION IN LATE ANTIQUITY:
THE THEODOSIAN CODE AND LATER ROMAN
MARRIAGE LAW
Mathew Kuefler
Although much scholarly work has already been done on Roman marriage law,
most of it deals with the classical era, and little has been done to explore the
remarkably radical changes to marriage law in Roman law in late antiquity, that
is, during the fourth and fifth centuries C.E. The Theodosian Code provides a
unique and valuable source of information, despite the limitations evident in any
legal text, on a wide range of legal issues pertaining to marriage: the necessity
of marriage, the choice of marriage partner and consent to marriage, marriage
payments, adultery and divorce, remarriage and inheritance, and even the mar-
riages of slaves, soldiers, and clerics, and same-sex marriage. The extent of the
changes revealed even demands new questions about the influence of Christian
ideology on later Roman law.
Keywords: antiquity; inheritance; law; marriage; Rome; Theodosian Code
Much has already been written about the history of Roman marriage law by distin-
guished classical scholars, from Percy Corbett’s The Roman Law of Marriage (1930)
to Susan Treggiari’s Roman Marriage (1991).1 Their magisterial works and most of
the work of other scholars in related fields—the history of the Roman woman or of
the Roman family—have focused on Roman marriage as understood in the classical
era of Roman history: the last century of the Republic and the first century of the
Empire, that is, the first centuries B.C.E. and C.E.2 Later changes to Roman marriage
law are often ignored or placed within a context of decline that is still all too often
the dominant paradigm for understanding late antiquity more generally. Scholarly
Mathew Kuefler is an associate professor of history at San Diego State University and editor of the
Journal of the History of Sexuality. He is the author of The Manly Eunuch: Masculinity, Gender
Ambiguity, and Christian Ideology in Late Antiquity (University of Chicago Press, 2001); editor of a col-
lection of scholarly essays entitled The Boswell Thesis: Essays on Christianity, Social Tolerance, and
Homosexuality (University of Chicago Press, 2006); and editor of a collection of historical documents
entitled The History of Sexuality Sourcebook (Broadview, 2007). He has also published articles on
Anglo-Saxon childhood, sodomy in France in the twelfth century, and pederasty in late antiquity and the
early Middle Ages. He is currently working on a series of scholarly projects related to Gerald of Aurillac,
a tenth-century French saint.
Journal of Family History, Vol. 32 No. 4, October 2007 343-370
DOI: 10.1177/0363199007304424
© 2007 Sage Publications
343

344 JOURNAL OF FAMILY HISTORY / October 2007
works of early Christianity, including Peter Brown’s The Body and Society (1988),
have likewise focused more often on marital renunciation than marriage and have
thus downplayed the continued importance of marriage among the silent majority of
Roman Christians even within a period of asceticism.3 When scholars of early
Christianity have turned their attention to marriage, such as Korbinian Ritzer in his
Le mariage dans les Églises chrétiennes du Ier au XIe siècle (1962) or Jean
Gaudemet in his Le mariage en occident (1987), they have placed it within a theo-
logical context rather than a legal one and have at best regarded later Roman
marriage law as the handmaiden of theology.4
To be sure, late antiquity has achieved a cachet of sorts among scholars in recent
years, and there are already several book-length studies that rely in part on later
Roman marriage law in their approaches. Among these are Aline Rousselle’s
Porneia (1988), Gillian Clark’s Women in Late Antiquity (1993), Philip Reynolds’s
Marriage in the Western Church (1994), Judith Evans Grubbs’s Law and Family in
Late Antiquity (1995), Antti Arjava’s Women and Law in Late Antiquity (1996),
Geoffrey Nathan’s The Family in Late Antiquity (2000), and my own The Manly
Eunuch (2001).5 Even in these studies, however, marriage law is ancillary to larger
concerns, whether women, men, or the family. More importantly, the radical refor-
mation of marriage law that took place in late Roman antiquity is muted by having
been placed within these broader—although clearly also important—contexts.
Judged on its own terms and apart from other considerations, however, legislation on
marriage in the later Roman Empire demonstrates a vitality that belies the notion of
decline or disregard and is worthy of reflection. Indeed, marital legislation repre-
sents a clearly significant—if not always consistent—imperial policy that intended
the meaningful reorganization of a fundamental institution of human life. Con-
sidering how much later generations, from medieval Christians to modern Europeans
and Americans, have borrowed from Roman antecedents in their views on marriage,
the revolution of Roman marriage in late antiquity carries a far broader significance
for historians and others.
The Theodosian Code (hereafter, C. Th.) makes a valuable if not ideal source for
examining Roman marriage law in late antiquity. The C. Th. has received the recent
attention of several legal scholars for its accomplishments overall, including by Tony
Honoré in his Law in the Crisis of Empire (1998), Jill Harries in her Law and Empire
in Late Antiquity (1999), and John Matthews in his Laying Down the Law (2000).6
As these and other scholars have noted, the C. Th. was intended to collect all of the
laws of the Roman emperors from Constantine I (ruled 306-337) to Theodosius II
(ruled 408-450); the latter ordered the compilation. New laws (called Novellae;
hereafter, N.) were subsequently added by Theodosius II and a few emperors after
him a bit more haphazardly until the end of the fifth century. The collection includes
all of the laws for the fourth century and much of the fifth, at least those that were
extant at the time of the compilation. The laws were abbreviated as they were
included, and occasionally different parts of the same law were placed in different
sections of the C. Th.; still, they were not changed in content (as the laws collected
in the Code of Justinian, compiled in the mid-sixth century, would be), and even
obsolete laws were included, so it is easily possible to see changes in the laws.7
The problems in interpreting the C. Th. are those of any legal document from the
past. A range of environmental factors must have significantly affected Roman
marriage in late antiquity, and scholars have also studied these in great detail: the

Kuefler / THEODOSIAN CODE AND LATER ROMAN MARRIAGE LAW 345
decline of the economy and the growing burden of taxation comprise one, and the
migration of eastern Mediterranean peoples to the west and of Germanic peoples
from the north is another. The extent to which these social circumstances prompted
changes in marriage laws is not always clear but must be assumed to have happened
in myriad ways. As the economy declined, for example, the need for clear rules
about the exchange of marriage payments would have become all the more urgent,
and patterns of ethnic migration may have introduced new marital customs from one
part of the empire to another. But few social changes had the impact that the con-
version of the Roman Empire to Christianity did, and scholars have spilled more
than a bit of ink debating the impact of the new religion on the marriage laws of late
antiquity, as we will see below.
Certain caveats must be made about these laws, even after asserting their impor-
tance. First, the record that survives of Roman marriage in late antiquity is primarily
about marriage among the upper classes of Roman society. Laws did refer regularly to
members of the lower classes, even slaves, on marriage as well as other issues, but it
is difficult to know the extent to which most laws or ideas about marriage “trickled
down” to those other than the elite. Second, even among the upper classes, it is diffi-
cult to know how regularly or rigidly these laws were enforced: how well did judges
across the empire know these laws (one of the purposes of the compilation of the
C. Th. was to ensure that judges were better informed about the law, which would
imply that they were not always so well informed), and, even if they knew the law, did
they apply it in all cases? Third, the laws represent a centralized authority, but it is
unclear how representative the laws are for all regions of the Roman Empire, and there
may have been considerable local variations from the patterns visible in the law.8 What
survives in the historical record, then, provides us with only a limited perspective on
what the full picture of Roman marriage in late antiquity must have been. Still, what
does survive provides a fascinating glimpse into the vitality of marriage law and of
conscious efforts to mold marriage by means of the law.
THE NECESSITY OF MARRIAGE

One of the most outstanding changes to the nature of Roman marriage in late
antiquity was the shift from the idea of marriage as a civic duty to that of an indi-
vidual choice. As marriage became less of a responsibility, it became more of a per-
sonal option, or at least a family’s option, and one that could be renounced if so
desired. Likewise, when marriage ceased to be a civic duty, the rights of unmarried
persons were greatly increased.
The first Roman emperor, Augustus, who reformed Roman marriage at the start
of the Common Era, made marriage a civic obligation through his Lex de maritan-
dis ordinibus. It is sometimes said that he made marriage mandatory, but he did not;
he simply leveled financial penalties for men and women who chose not to marry or
who remained unmarried after divorce or the death of a spouse, mostly preventing
them from taking inheritances. This law applied to all adult women between the ages
of twenty-five and fifty, and to men between the ages of twenty-five and sixty. The
maximum delay between marriages permitted without penalty was two years; a
minimum of ten months, called the tempus lugendi, was also required for women to
certify paternity in cases of pregnancy. Men may have been required to become
betrothed almost immediately to avoid penalties. Although historians dispute the

reasons for the legislation, most attribute it to concerns about population decline,
although it has also been linked to political maneuvering to strengthen the new impe-
rial power and argued as a mechanism for class control. Its effect, regardless, was to
make marriage and marriage preparations primary concerns for all Roman citizens.9
Constantine I ended this long-standing necessity of marriage in a radical law of 320
10
C.E. (C. Th. 8.16.1). Thereafter, no penalties were exacted against unmarried persons,
“imposed as yokes on their necks,” as the law phrased it. Many scholars have argued
that the legal change was the result of Constantine’s Christian beliefs, and we must pre-
sume that already in Constantine’s day, the numbers of unmarried Christians in the
Roman Empire were increasing because virginity and chastity were encouraged as
lifestyles preferable to marriage. This law allowed them and anyone else to remain
unmarried without risking the loss of inheritance rights. Yet there are other possible
motivations behind it. Evans Grubbs has suggested that there was a continued aristo-
cratic opposition to the restrictions on inheritance in the Augustan law and that
Constantine’s legislation constituted a concession intended to win the support of the
upper classes.11 The fourth century suffered even more population decline than the
first, and removing the incentives to marriage must have only aggravated that decline.12
Still, the overall effect of the law was to give individuals and families considerably
more freedom in contracting marriages or in refusing to contract them.
Inheritance remained central to the necessity of marriage. The financial penalties
for unmarried persons under Augustus’ legislation had taken the form of restrictions
on the inheritances that they were eligible to collect, as noted above, inheritances
that then fell to the imperial fisc.13 When Constantine repealed this legislation, the
drop in income to the imperial fisc may have been compensated for by new inheri-
tance restrictions placed on heretics, although these were mostly added by emperors
after Constantine (see, for example, C. Th. 16.5.7 denying inheritance rights to
Manicheans, or 16.5.17 to Eunomians).14 The Augustan laws had allowed for the
smooth transition of family resources, typically lands and the income from those
lands, from one generation to another, because parents would normally have left
their wealth to their children, who, because required to marry, would themselves
have normally passed their inheritance to their own children. In late antiquity, in con-
trast, the numbers of unmarried persons made collateral inheritances (to siblings,
nieces or nephews, and other more distant relatives) likelier, and, indeed, many laws
of the C. Th. address the problems of collateral heirs in detail.15
The inheritances of unmarried persons still remained problematic, however. Under
the Augustan laws, unmarried persons depended on their parents for financial support,
but might have been destitute on their father’s death and dependent on the voluntary
support of other relatives because they could not inherit. Their impoverishment might
have been circumvented somewhat by means of the fideicommissum, a sort of trust in
which the legal heir was instructed by the testament of the deceased to give a certain
amount from his inheritance to a third party. Ancient Roman jurisprudents agreed that
the fideicommissum was often used to surmount problems of legal inheritance.16 After
Constantine’s law, in contrast, unmarried persons were financially independent and able
legally to receive a share of their parents’ inheritance equal to their married siblings’
shares (implied in C. Th. 2.21.1, a law of 358; stated explicitly in N. Majoriani 6.1, a
law of 458; and mentioned again in N. Severi 1.1, a law of 463). Having no natural
heirs, however, once their parents were deceased, unmarried persons had fewer

testamentary restrictions and could leave most of their property, if they chose, to
unrelated persons. In this regard, unmarried persons had fewer restrictions on the
disposition of their wealth than did married persons with children, who were pre-
vented by law from disinheriting their children except in extraordinary circum-
stances. (It is perhaps also significant that Constantine also tried to prohibit the
fideicommissum in C. Th. 10.11.1, a law of 317, called there the hereditas commissa
tacitae fidei, and thereby made it even more difficult for parents to leave inheritances
to persons other than their children.) Constantine also allowed the Christian
churches to accept personal inheritances, and if many of the persons who remained
unmarried did so out of dedication to Christian chastity, they may have preferred to
leave their personal wealth to churches rather than to relatives.17
Some scholars have suggested that the laws encouraging marriage were necessary
because of a widespread lack of desire to marry among the Roman upper classes.
The exact reasons for this reluctance to marry are uncertain, if they existed at all, but
a number of possible explanations might be suggested. It may be connected to
opportunities for the freer practice of sexuality outside of marriage such as prostitu-
tion and other temporary sexual liaisons, although there is no real evidence to sup-
port such a speculation. It is also possible that it was related to the population
decline, which may have made it more difficult for individuals within the Roman
aristocracy to find suitable marriage partners. The woes of marriage had long been a
part of the Roman literary tradition, and it might be that once Romans were freed of
the necessity of marriage, many individuals chose not to participate in what was
viewed as an unwelcome lifestyle.18 The end to the necessity of marriage was prob-
ably particularly welcomed among Christians. The preference for celibacy was long-
standing among Christians, and if there existed a reluctance to marry, Christian
attitudes might well have played a major part. Certainly, writings by Christian teach-
ers in late antiquity extolled the virtues of the unmarried life and pointed out the dan-
gers and disappointments of marriage.19 The existence of sexless marriages, called
“chaste” or “spiritual” marriages wherein married couples renounced sex, which
may have been expedient under the terms of the Augustan legislation on marriage,
were by the fourth and fifth centuries seen as unnecessary temptations to sexual sin,
and were mostly discouraged by Christian writers except for promoting sexual
renunciation among already married persons.20
CHOICE OF MARRIAGE PARTNER AND CONSENT TO MARRIAGE

Another fundamental change to Roman marriage law in late antiquity involved the
choice of marriage partners and the related area of consent to marriage. Roman law had
always somewhat restricted an individual’s choice of a marriage partner. Restrictions
continued throughout late antiquity, to be sure, yet they were different sorts of restric-
tions. Consent to marriage also shifted dramatically from being understood as the father’s
consent to his children’s marriage to the individual’s consent, although it is difficult to
know the extent to which the shift in law was also a shift in practice.
There were several conditions required for a valid marriage (iustae nuptiae) in tradi-
tional Roman law. First, the two persons to be married could not be too closely related.
Incest was punishable between second cousins or closer relatives, but by a law of the
emperor Claudius, a paternal uncle and niece were permitted to be married (a law

widely seen as having been enacted to permit him to marry his own brother’s daugh-
ter).21 Other relationships equaled blood ones in restricting marriage. Women whose
fathers had died and who were therefore under the care of a legal guardian (either a
tutor or a curator, depending on the woman’s age) were forbidden to marry these
men or their sons or grandsons, according to a law of the emperor Commodus.
Obviously, financial practicalities were at work here, because a guardian could oth-
erwise manipulate his ward’s wealth and bring it into his own family’s control.
Second, a valid marriage could not be contracted between persons of widely dif-
fering social classes. The exact prohibitions are disputed by scholars, but were likely
intended to retain the distinctions between patrician and plebeian classes; among
slaves, freed persons (libertini), and free persons; as well as among Roman citizens,
descendants of non-Roman Italians (latini), and other subject peoples living in the
Roman Empire (peregrini).22 Only Roman citizens and latini had the right of conu-
bium, that is, the right to enter into a “full” marriage. All other marital unions were
inferior: if the husband lacked conubium, the marriage was called a matrimonium non
iustum, and if the wife or both parties lacked conubium, the marriage was called a con-
tubernium, sometimes misleadingly translated as concubinage but closer in meaning
to the modern cohabitation. The effect of these lesser marriages was to restrict the
transfer of property as marriage payments or gifts between social classes.23
Third, both parties had to be old enough to consummate the marriage for its com-
pletion. This might have posed a problem because of the young age of many women
at their first marriage. There is only anecdotal evidence for typical ages of marriage
among Romans of the upper classes, but most of it points to men in their late twenties
marrying women who were in their teens. Whether Roman women needed to have
reached puberty before being married has been hotly debated by scholars.24 Ages of
marriage could be quite different from one community or region to another, of course,
as well as from one individual couple to another, but it was not unheard of for a man
in his fifties or even sixties to marry a woman in her early teens. Perhaps the discrep-
ancies in ages at marriage provided other tangible benefits, as conceived by contem-
poraries. It might have served to bolster the authority of the husband over his wife if
she were considerably his junior. It might have strengthened the bonds between
women and their children, who were often closer in age to them than to their
husbands.25 Betrothal could occur between younger persons, but only after the con-
summation of the marriage was it possible to escape the penalties for celibacy, so it
was not in the interest of an adult to contract a marriage with too young a partner.26
Fourth, consent was necessary to contract a valid marriage. For a man or a woman liv-
ing under the control of his or her paterfamilias (a direct male ancestor still living), that
meant his consent to the marriage and may not have involved the individual’s consent at
all, although scholars agree that social practice may not be reflected in the law on this
point and may have been much more open to the negotiation of all parties involved.27 If
the prospective marriage partner had no living male ancestor and was therefore a free
legal agent (sui iuris), the legal requirement of consent differed according to sex. A man
chose his own wife; a woman required the consent of her legal guardian. An important
adjunct to consent was that any persons sui iuris had to consent not only to a sexual union
but also to live as married persons, that is, to consider themselves as being married, called
the affectio maritalis. If this affectio maritalis was absent, according to the jurist Ulpian,
the union was mere cohabitation, and participation in a marriage ceremony was felt to be
an important means by which to assert publicly the presence of affectio maritalis.28

By the fourth century C.E., a number of significant changes had already taken
place to this marriage system. The extension of the rights of citizenship to all inhab-
itants of the Roman Empire in 212 C.E. made the legal distinctions among ethnic peo-
ples irrelevant. Likewise, the distinction between patrician and plebeian had been
abolished. Much change had also taken place regarding the principle of consent. A
key shift in the focus of marriage resulted from a redefinition of the principle of
affectio maritalis. By the third century C.E., the term seems to have referred no longer
to a legal state of mind but to an emotional one: marriage, according to the famous
dictum of the jurist Modestinus, was a lifelong partnership of husband and wife.29
Accordingly, consent was increasingly defined by the will of the married couple as
well as by the fiat of the paterfamilias.30
New and equally important shifts took place in the issues of choice of marriage part-
ners and consent to marriage in the legislation of the C. Th. For example, the Christian
emperors enacted laws that created new restrictions on the choice of marriage partner.
So, for example, the prohibition on marital relationships between persons of widely dif-
fering social classes was continued and even expanded. At any rate, the law denied the
legitimacy to children for the purposes of inheritance from any of these relationships,
which was the clearest way of denying that they were marriages. One law of the
emperor Constantine from the year 336 is worth quoting at length:
It is our pleasure that Senators [clarissimi] or persons of rank of Most Perfect [per-
fectissimi] or those adorned with the honors of the duumvirate or the quinquennal-
itate in the municipalities or with the honor of flamen or of the civil priesthood shall
. . . [be punished if] they wish to consider as legitimate the children born to them of
a slave woman, a freedwoman, the daughter of a freedwoman . . . a woman of the
stage, a daughter of a woman of the stage, a mistress of a tavern, a daughter of a tav-
ern keeper, a low and degraded woman, the daughter of a procurer or of a gladiator
or a woman who has charge of wares for sale to the public. Thus if a father should
give anything to such children, whether he calls them legitimate or natural, all such
property shall be taken from them and restored to his legitimate offspring, or to his
brother or sister or father or mother. (C. Th. 4.6.3)31
This law replaced an earlier one that had allowed a man to bring an action against
the will of his deceased full brother if that brother had left any money to persons of
bad reputation, including actresses, prostitutes, or his illegitimate children (C. Th.
2.19.1, a law of 319). Again, it is clear that sexual unions, or even cohabitation, are
not prohibited by this law, but rather the legal effects of marriage, especially as per-
tains to inheritance by children born to such a union. More than a century later, a law
of Marcian upheld the ban but attempted to define more precisely just what a “low
and degraded woman” meant by saying that it did not include women in poverty but
only “those women who were polluted with sordid blots, either on account of the
stigma of degenerate birth or a life dedicated to shameful occupations” (N. Marciani
4.1, a law of 454). It should be noted that in other laws, actresses are often associ-
ated with prostitutes as “public women” (see, for example, the various laws in C. Th.
15.7, in which female musicians are also mentioned together with them).
Restrictions also appeared in later Roman law that betrayed the religious concerns
of the period. Christians were forbidden to marry Jews (C. Th. 3.7.2, a law of 388);
indeed, it was made analogous there to adultery. Likewise, restrictions attempted to
moderate the effects of the Germanic migrations into the empire: intermarriage

between Roman citizens and non-Romans was forbidden, and the death penalty was
threatened for violators of the law (C. Th. 3.14.1, a law of 368).
Beyond these prohibitions, legislation in the C. Th. seems to have lost the classi-
cal distinctions among conubium, matrimonium, and contubernium. In both the legal
and theological writings of late antiquity, conubium and matrimonium are used
indiscriminately to refer to all valid marriages, and contubernium to cohabitation
without marriage. There remained vestiges of the old usage, because slave marriages
were always referred to as contubernia, but more often than not, legal sources pre-
ferred more general terms like conjugium (union) or even more poetic terms like
uxorem ducere (to take a wife), trends that may indicate that social reality, or at least
linguistic usage, no longer corresponded much to classical legal definitions.32
Laws against incestuous marriage played a leading role in defining the restrictions
on proper Roman marriage in late antiquity. The emperors Constantius and Constans
abrogated the Claudian law of the early Empire that had allowed a paternal uncle to
marry his niece, and even ordered the execution of anyone who defied it (C. Th. 3.12.1,
a law of 342). They also clarified a previously unclear prohibition by refusing to per-
mit marriage between a man and his brother’s former wife, or his former wife’s sister
(C. Th. 13.2.2, a law of 355). That incestuous marriages continued can be deduced
from the following: a century after these laws were enacted, individuals were still try-
ing (albeit unsuccessfully) to obtain imperial dispensation to marry their close relatives
(C. Th. 3.10.1, a law of 409). Even an emperor in the fifth century, Honorius, attempted
to marry as his second wife the sister of his first wife, although such a marriage was
illegal and public opinion forced him to abandon her within the year.33 At the end of
the fourth century, too, the penalty for contracting an incestuous marriage was reduced
from death to financial penalties, which may indicate that the law did not correspond
to public opinion (C. Th. 3.12.3, a law of 396).
The legal discussions of incestuous marriages in late antiquity, it has been sug-
gested, stem from an enduring aristocratic preference for endogamy and attempts to
keep family wealth within a close circle of kin. Yet Brent Shaw and Richard Saller
found little epigraphical evidence for endogamy among the ethnically Roman upper
classes of the later Roman Empire.34 Other regional studies, in contrast, have found
much evidence for close-kin marriages, even for brother-sister marriage, despite
long-standing Roman laws prohibiting such marriages. Evidence is clearest in
Egypt, where brother-sister marriage continued from earlier eras and seems in the
Roman era to have been practiced among all levels of society.35 Nonetheless, simi-
lar close-kin marriages may have happened elsewhere; they have been noted in
Roman Mesopotamia and other regions along the eastern border of the Roman
Empire, and may have been influenced by Persian customs.36
By the fourth and fifth centuries, the emotional aspects of marriage and, in par-
ticular, the importance of consent had also found their way into law. This change is
best exhibited by the reiteration of the need for a woman’s consent to marriage
in later Roman law. Coercion of women into marriage was condemned repeatedly
(C. Th. 3.10.1, 3.6.1, and 3.11.1). If a man seduced a woman, using either force or
coercion, so as to prompt or oblige her to marry him, their marriage was forbidden
even if the parents consented to the marriage (C. Th. 9.24.1). According to a law of
the emperor Majorian, parents could not even consecrate a daughter to lifelong vir-
ginity before she reached the age of reason, so that she might preserve fully her abil-
ity to consent to marriage. He asked,

For what does it profit if the desire of a maiden should be suppressed by the pater-
nal power [patria potestas, that is, the authority of the paterfamilias over her] and
should deeply conceive a furtive wish to marry and, since she has been constrained
from a legitimate union, should be enticed into illicit allurements? (N. Majoriani
6.1, a law of 458)
Nonetheless, the exact relationship between a woman’s consent to marriage and the
rights of her paterfamilias to contract a marriage on her behalf is unclear. In one law,
his consent was implied as necessary for her to marry legally (C. Th. 3.5.11, a law of
380), but the father’s consent may have been assumed unless he made a formal protest.37
If she wished to remarry and was younger than twenty-five, she needed her father’s con-
sent if he were still alive, nor could she object to his choice unless she could find real
fault with the man her father had chosen for her (C. Th. 3.7.1, a law of 371). The pres-
ence of a marriage payment would also seem to necessitate the family’s continued
involvement in the marriages of children. So it is notable that by a law of Theodosius II
and Valentinian III, issued in 428, a marriage without a ceremony or marriage payments
was still decreed to be valid as long as it had been contracted between persons eligible
to marry and by their consent. The knowledge of the couple’s friends was considered
sufficient proof of the existence of affectio maritalis (C. Th. 3.7.3). This law was abro-
gated a generation later by Majorian, who perhaps understood how truly radical it was;
he noted with some severity that those married without a dowry “must be so branded
with the stigma of infamy that neither will the union be adjudged a marriage nor will
legitimate children be procreated by such persons” (N. Majoriani 6.1, a law of 458).
Disregarding the formal requirements of marriage must have facilitated the marriage of
individuals without the consent of their parents, but it probably also created difficulties
when one party later denied the existence of the marriage or if one family later tried to
negotiate a marriage payment.
The existence of informal marriages in general is difficult to ascertain, not sur-
prisingly. One law of Constantine I, traditionally believed to have punished rape,
may instead have attempted to prohibit one type of informal marriage by abduction,
according to Judith Evans Grubbs. Abductive marriages may have taken place when
marriage negotiations broke down, either because of refusal to consent or on the
exchange of marriage payments, and may have been attempts to “jump-start” these
negotiations by consummating the marriage and thus obliging subsequent consent or
payment.38 Not only were such marriages forbidden by Constantine, with a threat to
exile the parents and execute any other accomplices (C. Th. 9.24.1, a law of 326), but
also even senators (clarissimi) were warned that they should not expect lighter pun-
ishment if they were involved in abductions of this sort (C. Th. 9.1.1, a law of 317).
The only area in which the choice of marriage partner was not radically altered in
late antiquity was in ages of marriage, which seem to have remained more or less
constant. The reasons for this stability are not well understood. It is perhaps the con-
tinued nature of family wealth. Scholars have long suggested that in economies with
land-based wealth, men tend to marry only after their father’s death when they pos-
sess the inherited means to support themselves, whereas women tend to marry as
soon as they reach childbearing age, and this pattern would have remained undis-
turbed in late antiquity.39 And even though the large rural estates (latifundia) of the
later Roman Empire would easily have supported extended families, nuclear families
seem to have been the rule in late antiquity, so that individuals, once married, no

longer lived with their families of birth.40 Whatever other variables might have
affected ages of marriage seem not to have had much impact, at least in the legal
record. David Herlihy, for example, suggested that the inflation of marriage pay-
ments in late antiquity might have resulted in increased average ages of marriage,
because families compared ever more attractive offers and thus delayed the mar-
riages of their children.41 Yet there is little in the C. Th. that supports this conjecture.
One law required a father to return all payments made as betrothal gifts he had
received for his daughter if he broke off the engagement before his daughter turned
ten years of age, but four times the value of the gifts if he had done it after she turned
ten (C. Th. 3.5.11, a law of 380). Although it was eventually rescinded, the law might
have been intended to discourage the sort of “comparative shopping” that might have
delayed ages of marriage.
MARRIAGE PAYMENTS
Although marriage payments ceased to be required in later Roman law for a brief
while, they otherwise remained nonetheless an important marker in many marriages,
a sign not only of affectio maritalis but also of the joining of families that constituted
traditional marriage. This conservatism masks what was a real revolution in marriage
payments in Roman law in late antiquity.
The dowry (that is, the transfer of money or property from the wife’s family of
birth to the married couple) had long been an integral part of Roman traditions in
marriage. In the earliest periods, the dowry had been transferred to the husband’s
paterfamilias, if he had one. By the early imperial period, ownership of the dowry
was more complicated. Income from the money or property belonged to the
husband, but the dowry itself continued to belong to the wife’s paterfamilias or her
other blood relatives, so her husband could not sell land that was part of a dowry;
moreover, the wife’s family of birth could take it with her if her husband divorced
her, and it reverted to her blood relatives if she died without children.42 Scholars have
suggested that these changes resulted from the more frequent occurrence of divorce
and remarriage among the Roman aristocracy in the late Republic and early Empire,
and were intended to insure that a woman’s blood relatives would not lose family
lands or be obliged to provide a new dowry to a widowed or divorced woman who
remarried to satisfy the Augustan requirements.43 Dowries were thus vital means for
women’s inheritance. By a law of the early Empire, a paterfamilias was required to
provide all women under his jurisdiction with an adequate dowry and leave an inher-
itance to any who were still unmarried at his death that might serve as their dowry.44
In the later Roman Empire, laws preserving the dowry remained in force. A law
of Julian decreed that a dowry must be given for a marriage to be valid (C. Th.
3.13.2, a law of 363), and although this law was abrogated by Theodosius II and
Valentinian III in 428 (C. Th. 3.7.3; see the discussion above), it was restored by
Majorian in 458 (N. Majoriani 6.1). Likewise, husbands were still required to pre-
serve their wives’ dowries intact (N. Theodosiani 14.1, a law of 439), and dowries
were expected to revert to a woman at her husband’s death and not be absorbed into
his family’s inheritance (C. Th. 3.13.3, a law of 422).
Much more interesting is the growth of the marriage payment that is referred to
in late Roman law as the betrothal gift (variously, donatio ante nuptias, sponsalicia
largitas, dona nuptialia, or dona sponsalicia), a gift from a man or his relatives to

his future wife at the betrothal, called the dower in some modern literature.45 Its ori-
gins are disputed but may be related to the Greek custom of arrabôn, whereby a
husband compensated his father-in-law for the loss of his daughter with a payment,
or to the Germanic custom of morgengabe, a gift given by the husband to his new
wife on the morning after their wedding night.46 The wife kept this betrothal gift, and
it did not pass into her father’s hands, but she was also forbidden to sell it or other-
wise alienate it, and had to preserve it for her children (C. Th. 3.8.2, a law of 382).
It is clearly implied in the C. Th. that the betrothal gift had became even more
important than the dowry as the key marriage payment. Indeed, the tone of the laws
suggests that legislators were desperately trying to preserve the continued signifi-
cance of the dowry in the face of the growing size and importance of the betrothal
gift. According to the eastern emperor Valentinian III, “The party of the wife shall
give as much as the husband conferred as betrothal gifts, so that there shall be an
equal condition for the giver and receiver” (N. Valentiniani 35.1, a law of 452). A law
of the western emperor Majorian reiterated the same principle a few years later:
An equal condition on both sides should bind a man and a woman who are to be
joined in a nuptial union, that is, the future wife shall know that she shall never pay
under title of dowry less than she obtained as a betrothal gift. (N. Majoriani 6.1, a
law of 458)
Yet it seems clear that the inflated value of betrothal gifts was nothing new in the mid-
fifth century. A century earlier, Julian had made even a Roman family’s ancestral lands
(fundus Italicus) valid for use as betrothal gifts as long as they were given formally to
avoid any legal ambiguities about their transference (C. Th. 3.5.8, a law of 363).
With such value attached to betrothal gifts, problems arose when the betrothal did
not lead to marriage, either when one of the parties reconsidered the match or when
one of the individuals to be married died before it took place. Numerous laws
attempted to maneuver delicately through these arrangements, for example, attempt-
ing to distinguish between an informal promise of marriage, which sometimes occa-
sioned gifts, and a formal ceremony of betrothal, which always involved gifts.
Constantine at first simply ordered all betrothal gifts returned in the event of the
death of one of the parties (C. Th. 3.5.2, a law of 319), but then decided that if the
fiancée had been kissed, perhaps in a formal ceremony of some sort, she deserved
the compensation of half of the value of the gifts (C. Th. 3.5.6, a law of 336). What
constituted betrothal gifts had to be declared, and all such gifts had to be registered
(C. Th. 3.5.1; probably the same law of 319 as C. Th. 3.5.2); if not, they would not
have to be returned if the engagement was called off or the marriage ended, unless
the woman was a minor (C. Th. 3.5.3, a law of 330; confirmed by 3.5.13, a law of
428) or the total value of the gifts was fewer than 200 solidi (C. Th. 3.5.13). Further
complications and exceptions followed. Simplicity won out for the most part, and,
excepting these last conditions, all betrothal gifts were ordered returned at the death of
one of the fiancés (C. Th. 3.5.10, a law of 380) or even at the rupture of the engagement
because of the reputation of one of the parties, as one of these laws indicated, such as
“the morals or the low birth” of one of the parties, “since long before the betrothal was
contracted, all these things should have been foreseen” (C. Th. 3.5.2).
The inflation of betrothal gifts in late antiquity also challenged legal traditions
from the early Empire that had forbidden any extravagant gifts between husbands

and wives. The lex Papia Poppaea and lex Julia de maritandis ordinibus had limited
marital gifts to the value of one-tenth of a couple’s estates. These laws had already
been abrogated at the start of the third century C.E. and may indicate the presence of
betrothal gifts of considerable value in Roman custom long before they made them-
selves felt in Roman law.47 Still, extravagant gifts given after marriage directly
between husband and wife continued to be prohibited in late antiquity. Constantine
reaffirmed the Augustan law limiting these gifts (C. Th. 8.16.1, a law of 320; he later
exempted members of the shipbuilders’ guild from these limitations, perhaps as a
boon to a vital industry—see C. Th. 13.5.7, a law of 334). A century later, a husband
was also forbidden from giving his wife her dotal property as a gift, in what was pre-
sumably a measure intended to keep a dowry distinct from other possessions (C. Th.
3.13.3, a law of 422).
It is not clear what forces prompted this shift in marriage payments in late antiq-
uity, although major social or economic changes must have influenced it. The shift
has not been discussed or even recognized by most scholars.48 David Herlihy, one of
the few to mention it, suggested that it was caused by the high rate of female infan-
ticide in the Roman world, a situation only aggravated in late antiquity by the num-
bers of Christian women who dedicated themselves to perpetual virginity. As
marriageable women became a rarer commodity, Herlihy maintained, Roman men
and their families were increasingly willing to pay to marry them rather than to be
paid for marrying them.49 There are problems with this explanation. To begin, it is
by no means established that rates of female infanticide were any higher than male
infanticide rates in the Roman world, or even that infanticide was that commonplace
at all.50 In addition, it would seem logical that if women had become a “rarer com-
modity,” as Herlihy put it, female infanticide would have ceased quickly and a glut
of men would have made parents less likely to abandon or kill their infant girls.
Moreover, the sources that point to large numbers of celibate Christian women also
describe large numbers of celibate Christian men as monks or clergymen, especially
given the increase in the practice of clerical celibacy in the fourth and fifth cen-
turies.51 Finally, laws preserved in the C. Th. first discouraged and then outright pro-
hibited infanticide with capital punishment (C. Th. 11.27.1, a law of 315; 11.27.2, a
law of 322; and 9.14.1, a law of 374); the last of these would almost certainly have
meant a decline in, if not a complete halt to, the practice.
If the origins of the importance of betrothal gifts in marriage laws are unclear, its
effects are clear enough. It meant that both a husband’s and a wife’s families con-
tributed to the financial independence of the couple that was to be married and per-
haps thereby doubled the potential for contributions made in earlier generations to
newlyweds. It meant that a widow had far more resources at her disposal, with lands
and income from both the dowry and the betrothal gifts that could not be taken from
her by a former husband’s family. A widow with children was obliged to preserve
both forms of marriage payments for her children, but childless widows had no such
restrictions on the use of their possessions. The reluctance of many widows to
remarry, noted by several late ancient writers, may have stemmed as much from per-
sonal financial independence as from Christian piety. The emperor Majorian even
attempted to oblige childless widows younger than forty to remarry within five years
or face financial penalties, and said that he did so out of concern for their “obstinacy”
in choosing “a lascivious freedom of living” over remarriage, but before the grace

period had ended, his successor repealed the law (N. Majoriani 6.5, a law of 458;
and N. Severi 1, a law of 463).52
ADULTERY AND DIVORCE

The laws of the later Roman Empire also put an end to another long-standing
Roman tradition of marriage, namely, the liberty of divorce. It was part of a greater
emphasis on the indissolubility of marriage except for serious breaches. One of these
breaches was adultery, which remained a legal offense involving only the marital
status of the woman.
Because marriage in the early Empire was initiated by the affectio maritalis, it
could be ended by the ending of that desire. In this regard, as has been said by schol-
ars, Roman marriage required “ongoing consent” rather than simply “initial con-
sent,” as opposed to later (including both medieval and modern) interpretations of
marital consent.53 It is why bigamy did not exist as a crime in the Roman world,
because marital desire was conceived of as singular, and establishing affectio mari-
talis with one person meant at the same time discontinuing it with any other person.54
Still, ending consent to be married normally required the return of the dowry and
financial entanglements, and usually involved the families of both husband and wife.
Augustan laws permitted only the patresfamilias to end a marriage; a husband could
divorce his wife, of course, if he had no paterfamilias, but a wife could not divorce
her husband except under limited circumstances or with her father’s approval.55
Already in the second century, these rules had changed somewhat, because by then
a paterfamilias could not end a marriage that the couple themselves did not want
ended, and women were clearly also by that period able to initiate divorce.56 We are
led to believe that divorce happened frequently among the upper classes of imperial
Rome, and that may be true; it is also possible that marriages outside of the aristoc-
racy seldom ended by divorce.57
The Christian emperors in the fourth and fifth centuries changed all that.
According to a law of Constantine enacted in 331, criminal charges could be brought
against anyone who sought a divorce for a “trivial charge” (levi obiectione). A
woman was able to divorce her husband only if he was a murderer, a sorcerer, or a
tomb robber, and specifically not merely because he was a drunkard, a gambler, or
a muliercularius (a term that I have argued elsewhere probably meant a frequenter
of prostitutes, although it has been generally mistaken as a synonym for moechus, a
man who commits adultery with married women).58 The punishment for violations
by a wife was not only loss of her dowry and betrothal gifts but also deportation to
an island. In contrast, a man was able to divorce his wife if she was an adulteress, a
sorceress, or a procuress, but if he repudiated her for any other reasons, he forfeited
her dowry and lost the right to remarry. If he did remarry, his new wife forfeited her
dowry and betrothal gifts to his former wife (C. Th. 3.16.1).
In a real sense, this law made divorce no longer a private right of Roman citizens
but rather a penalty imposed by the state for offenses against marriage. The limita-
tions on divorce were plainly intended to be revolutionary. It is usual to see Christian
influence on this law, but most Christian writers were arguing for the absolute indis-
solubility of marriage, so it is difficult to understand why any exceptions should have
been made at all. Was it a compromise position between Christian doctrine and

Roman tradition? G. Robina Quale has suggested that the emphasis on indissolubil-
ity in marriage came not from Christian impulses but from demographic ones, say-
ing that as Romans moved increasingly from rural roots to urban ones, marital ties
replaced kinship bonds and grew in symbolic and psychological importance.59
However it might prohibit official divorce, the state could not prevent separation by
mutual consent, but by withholding official sanction to divorces, it could prevent
remarriage and impose severe penalties for it. A fifth-century law on divorce reiter-
ated that a man who had deserted his wife “because of a mere disagreement,” out of
“mental discord,” or even because of “her frivolity,” and for no other substantial rea-
sons, lost his right to remarry. His abandoned wife could remarry after one year. A
woman who left her husband likewise also lost the right to remarry and could be
prosecuted for adultery if she lived with another man (C. Th. 3.16.2, a law of 421).60
Not surprisingly, the law of 331 seems to have proved unpopular with the Roman
aristocracy. It was briefly abrogated twice by later emperors, first by the emperor
Julian in the mid-fourth century (in a law that is not preserved in the C. Th. but would
have been promulgated around 363) and again in the mid-fifth century by
Theodosius II (N. Theodosiani 12.1, a law of 439), although it was reinstated each
time within a few years, first by Jovian (in a law that is also not in the C. Th. but
would have been promulgated in 365) and again by Valentinian III (N. Valentiniani
35.1, a law of 452). Apart from a couple of years in the mid-fourth century, then, and
a dozen years in the mid-fifth century, the law was in force. Julian, the only pagan
emperor after Constantine, may have been trying to restore Roman tradition on
divorce, but the motivation behind Theodosius II’s repeal of the law is unclear.
Perhaps he was bowing to continuing public pressure, because he describes the law
of Constantine as “harsh.” It is also entirely possible that in remote parts of the
empire, the law was never properly enforced, and we have one example from Egypt
in this period that describes a divorce taking place for other than official reasons: the
wife claimed that an “evil demon” had come upon the relationship.61
The restrictions on divorce in the fourth and fifth centuries went hand in hand
with a renewed emphasis on adultery in the law. Not surprisingly, as it became more
difficult to end an unwanted marriage, the legal restrictions on individuals’ behavior
within marriage assumed a greater importance. Adultery, it is often said, does not
seem to have been a major concern of the Roman aristocracy in the early Empire. It
had always been illegal for women to have sex with men other than their husbands
(which is how adultery was defined: sex between a married woman and a man other
than her husband), and Augustus in the lex Julia de adulteriis ordered any woman
found guilty of adultery to be punished with the dissolution of her marriage, her exile
to an island, the loss of half of her dowry, and the full return of any gifts given to her
by her husband. Any citizen could bring a charge of adultery against a woman or
against a man who committed adultery with a married woman (his marital status was
legally irrelevant).62
Constantine began the reform of the adultery laws. He permitted only a father,
a husband, or other relatives of the husband to initiate charges of adultery against a
married woman, removing the accusation from the public sphere and returning it to
the private sphere of the family (C. Th. 9.7.2, a law of 326). Significantly, none of a
woman’s relatives were empowered to charge her with adultery. Constantine also
exempted women of certain menial professions from charges of adultery:

If the mistress of a tavern, that is, the wife of a tavern keeper, should be found in
adultery, she can be accused; but if her maid-servant or a woman who gives service
in the tavern should be apprehended in adultery, she shall be acquitted in consider-
ation of her mean status. (C. Th. 9.7.1, a law of 326 and probably the same original
law as the preceding one)
The law also specified that the tavern keeper’s wife could also be accused by none
other than her husband. The law must be related to the practice of prostitution within
taverns and be an attempt to excuse women who might sell sexual favors from being
prosecuted.63
Indeed, Constantine and his Christian successors enacted a series of laws that
demonstrated how seriously adultery should be taken by the courts. Adultery always
had to be prosecuted as a criminal offense and never as a civil offense, for example
disguised within a suit for the recovery of a dowry (C. Th. 9.7.7, a law of 392).
Torture of household staff to obtain information about the case was permitted (C. Th.
9.7.4, a law of 385). No appeals would be granted to persons convicted of adultery
(C. Th. 11.36.7), and even persons previously acquitted could be retried (C. Th.
9.7.8, a law of 393). The penalty for adulterers was gruesome: to be sown into a
leather sack and burnt alive (C. Th. 11.36.4, a law of 339). Significantly, this was the
same form of punishment as ordered for parricides. The connection seems to be that
adultery is as much a breach of family loyalties as the murder of one’s parents. Still,
we have one later instance in which the penalty for adultery was reduced from death
to exile (N. Majoriani 9.1, a law of 459), and this case is specifically cited as prece-
dent. Charges of adultery were always strictly personal, so if a woman accused of
adultery died before a sentence was determined, all charges had to be dropped and
no further action could be taken against her heirs (C. Th. 3.13.1, a law of 349).
The severity of adultery must have been brought home to Romans of late antiquity
in a powerful way by the execution of Fausta, Constantine’s own wife, for adultery in
326. There was likely a political motive, because Fausta was also the daughter of
Constantine’s ally-turned-rival, Maximian. Others suggest that Constantine wished to
repudiate Fausta and marry another woman.64 Still, the celebrity of the case must
have strongly reinforced the new laws on adultery.
REMARRIAGE AND INHERITANCE

The restrictions on divorce in the later Roman Empire were matched by new and
greater restrictions on remarriage. In earliest Roman tradition, the ideal of lifelong
marital devotion seems to have been strong among women, who were supposed to
remain univirae (“one-man women”).65 Many historical societies have discouraged
remarriage as complicating the transference of marriage payments either as returned
to the givers or in inheritance to the next generation. The Augustan laws against
celibacy, however, seriously undermined this earlier preference for univirae, because
until she reached the age of fifty, a widow could be financially liable for refusing to
remarry after divorce or the death of her husband. Even before the time of Augustus,
frequent remarriage was a necessary corollary to the perpetually shifting political
strategies at least of families and individuals of the upper classes.66
Legislation in the fourth and fifth centuries attempted to return Roman society to
the older traditions that discouraged remarriage. We have already seen that the right

to remarry was newly tied to offenses within first marriages. Even for lesser
offenses, individuals were often forced to wait to remarry. A woman who divorced
her husband, even for valid reasons, was required to wait at least five years before
remarrying, whereas women who divorced their husbands for unacceptable reasons
could never remarry and faced exile to an island if they attempted it. Men, too, were
denied remarriage if they left their wives improperly or risked the loss of their new
wife’s dowry to the former wife (C. Th. 3.16.1; see the discussion above), but even-
tually the law added that even if they divorced for a proper reason, they still had to
wait two years before remarrying (C. Th. 3.16.2, a law of 421). In other circum-
stances, there seems not to have been the same restrictions. Theodosius I thought it
repellent that a woman of the Roman aristocracy might remarry before the tempus
lugendi was ended, that is, before she knew whether she was pregnant by her previ-
ous husband. According to him, such a woman “shall be branded with the marks of
disgrace and deprived of both the dignity and rights of a person of honorable and
noble status.” She also lost all rights to any gifts—including betrothal gifts—she had
received from that previous husband (C. Th. 3.8.1, a law of 381).
Legislators seem to have been particularly anxious that children from an earlier
marriage not be disadvantaged in their inheritances by a subsequent marriage. One law
says that a widowed woman who wished to act as the legal guardian for her children
had to promise not to remarry (C. Th. 3.17.4, a law of 390, although there were provi-
sions in case she changed her mind). Several laws point to the necessity to preserve a
father’s inheritance for his own children and not let it be diverted to his widow’s new
children by a second husband (C. Th. 3.17.4, 8.13.4, 3.8.2, 3.8.3, 3.9.1, and 5.1.8). So,
for example, a woman who remarried was not permitted to revoke inheritances from
“undutiful children,” a right that other mothers had (C. Th. 8.13.1, a law of 349; and
8.13.4, a law of 358), presumably so that she could not divert funds from the children
of her first marriage to those of her second. And even though her second husband had
rights to her dowry during their marriage, at her death at least one-quarter of it had to
go to the children of her first marriage (C. Th. 2.21.2, a law of 360). In the fifth cen-
tury, it was decreed that all laws relating to the remarriage of women were to be applied
equally to the remarriage of men (N. Theodosiani 14.1, a law of 439).
Even without remarriage, inheritance rules had become increasingly complicated for
Romans who married in late antiquity. Laws dealing with inheritances between spouses
had perhaps been simpler in the early imperial period of Roman history. Wives normally
remained legally part of their families of birth and were not joined to their husband’s
family, and so husbands and wives were not the natural heirs to each other. Instead, when
a husband died, his estate went to his children; if he had none, it went to his blood rela-
tives. When a woman died, her dowry was returned to her father, if he was still living, or
to other of her blood relatives.67 The lex Papia Poppaea of the early Empire allowed
husbands and wives to inherit only one-tenth of each other’s estate. Changes were hap-
pening to marital inheritance already by the beginning of the second century. The sena-
tusconsultum Tertullianum decreed that mothers should be the natural heirs to their
children, so that if a man died and left his estate to his children and then they died, his
wife would inherit indirectly from him. It was already the case that fathers inherited from
their children who died without leaving their own heirs. At about the same time, the sen-
atusconsultum Orfitianum allowed women’s dowries to pass to their children, too.68
In late antiquity, these rules were relaxed even further and allowed husbands and
wives to inherit from each other in new ways. So, for example, Constantine required

women who inherited anything from their husbands through a fideicommissum to

report it to the state and forfeit half of its value; still, they were permitted to keep the
other half (C. Th. 10.11.1, a law of 317). Constantine also permitted a mother to divide
her personal estate among her children before her death, something her husband was not
permitted to do (C. Th. 2.24.2, a law of 327). But if any of her children died before she
did, she could only reclaim a portion of the estate, and the rest went to her husband
(C. Th. 5.1.1, a law of 321; if he had already died, his share went to his blood relatives).
When she died, a wife’s estate—including her dowry and betrothal gifts—went to her
children, and if they were minors, her husband retained control of them and could
still claim any income generated by them, although he was prohibited from selling
any properties, much as he could not during his wife’s lifetime (C. Th. 8.18.1, a law
of 315). Yet he was also permitted to emancipate his children from under his legal
jurisdiction and appoint for them an outside guardian, and if he did so, he was able
to collect one-third of his deceased wife’s estate as compensation (C. Th. 8.18.1; and
C. Th. 8.18.2, a law of 319).69
By the fifth century, the law became even less interested in the separation of mar-
ital property. Under Honorius and Theodosius II, all husbands and wives were per-
mitted to inherit from each other, an explicit repeal of Roman legal tradition on this
point. Any married persons were thenceforth free to leave in a will as much as they
wanted to their spouses (C. Th. 8.17.2, a law of 410). The law went even further and
made intestate spouses each others’ natural heirs if they had no children. One law did
state that “the law of nature” (lex naturae) made a woman’s blood relatives her nat-
ural heirs and not her husband (C. Th. 4.21.1, a law of 395), but another law permit-
ted husbands and wives to inherit from each other “if near kinsmen should be
entirely lacking” (C. Th. 5.1.9, a law of 428) and then simply if witnesses could
prove that such was the intention of an intestate spouse (N. Valentiniani 21.1, a law
of 446, based on one example, that of a Leonius and his wife, Jucunda).
By various means, then, husbands and wives in late Roman antiquity were able to
inherit from each other. Both the dowry and the betrothal gifts, as well as whatever
other wealth a married couple brought into their marriage, became part of a family
trust of sorts that was made available not only to their children but also, in some
cases, to each other. Distinctions were still made among different forms of wealth,
and different restrictions applied to each, but husbands, wives, and their children
took increasing preference over other potential heirs.
MARRIAGE OF SLAVES, SOLDIERS,

AND CLERICS, AND SAME-SEX MARRIAGE
Most of the discussion so far has defined marriage as it existed among the upper
classes of late Roman society. There is, as noted at the start of the article, little writ-
ten documentation for marriage among the lower classes. Still, information about
some of these marriages has been preserved in the C. Th., namely, for the marriages
of slaves and soldiers. In late antiquity, moreover, the marriages of Christian clerics
and same-sex marriages were condemned.
It is unknown how frequently slaves in traditional Roman society “married,” that
is, cohabited in permanent or semipermanent relationships with perhaps the hope of
having and raising children together. Most slaves, especially those involved in agri-
cultural work, may have been kept in barracks and segregated according to sex,

according to scholars, so the opportunities for marital-like relationships may have

been few.70 Others did form marital-like relationships, called contubernia (literally,
“sharing the same tent”) in the legal sources, as noted above. More distressing to
Romans was the idea of intermarriage between slaves and free persons. Of course,
free adult men had regular sexual access to slaves: to their own, if they were slave
owners, or to enslaved prostitutes. What was distressing, then, was the notion that a
free man would try to pass his wealth or his status to his children born from a sex-
ual liaison with a slave woman, and it was clearly and consistently condemned in
Roman law. Even more distressing was the thought that a free Roman woman would
engage in a sexual relationship with an enslaved man. Such things clearly happened
but were dealt with harshly. According to traditional Roman law, if a free woman
bore the children of a slave, those children were slaves. She remained free, but that
was presumably so as not to interfere with the rights of her paterfamilias over her,
something that may be inferred from a change to the law in the early Empire, when
by the senatusconsultum Claudianum women who bore the children of slaves were
themselves enslaved without regard for the rights of any paterfamilias over them.71
By the fourth and fifth centuries, in contrast, certain aspects of slave relationships
were changing. Agricultural slaves were more commonly given their own quarters and
lived in family units.72 Similarly, more attention was being paid to the relationships
themselves. A law of the emperor Constantine forbade the division of slave families on
the imperial estates by their sale to different masters (C. Th. 2.25.1, a law of 324 that
may have applied only to the island of Sardinia). He was probably motivated by humane
considerations, perhaps including the notion that marriages of slaves should be invio-
late, although slave couples are not specifically mentioned. Still, the law applied only to
imperial estates: Constantine was presumably also not wishing to alienate the slave-
owning aristocracy and the slaves owned by the cities of the empire by doing so (as, for
example, he noted in another law about slaves, C. Th. 4.12.3).73
At the same time, some things stayed the same regarding slave marriages, includ-
ing the horror at relationships between free women and slave men. Very early in his
reign, Constantine reaffirmed the senatusconsultum Claudianum that condemned a free
woman who cohabited with a male slave with the loss of her freedom and that of her
children (C. Th. 4.12.1, a law of 314). Three years later, he specified that there had to
be formal notification before seven witnesses before it could be evoked (C. Th. 4.12.2,
a law of 317). A few years after that, Constantine clarified the law further by saying that
if the woman did not know her husband was a slave, she could retain her status but
her children would be counted as the legal equivalent of freedpersons (latini), argu-
ing that there should be lesser consequences of “either an imprudent error or simple
ignorance or a lapse due to the frailty of youth” (C. Th. 4.12.3, a law of 326 or 330).
Some time after that, however, Constantine reversed his position yet again and
allowed for the enslavement of such women, even without formal notification (C. Th.
4.12.4[5], a law of 331); at about the same time, he harshly condemned women who
had children by one of their own slaves but attempted to pass them off as the children
of their husbands (C. Th. 9.9.1, a law of 326 or 329).74
Constantine’s successors continued to tinker with these laws. Julian reaffirmed
Constantine’s condemnation of these unions between a free woman and an enslaved man
(C. Th. 4.12.5[6], a law of 362). So did Valentinian and Valens, arguing that such a
woman deserved so harsh a punishment “if in the estimation of a lustful woman her
concupiscence is of more importance than her freedom” (C. Th. 4.12.6[7], a law of

366). They also made a free woman who cohabited with an imperial weaver subject
to the loss of her free status (C. Th. 10.20.3, a law of 365). Gratian, Valentinian II,
and Theodosius I added imperial minters to this prohibition (C. Th. 10.20.10, a law of
380). Arcadius and Honorius brought back the requirement that a formal notification be
given as a warning (C. Th. 4.12.7[8], a law of 398), and Valentinian III added the pro-
vision that any children born to such a union before the notification would be consid-
ered as latini, whereas those born after it would be slaves (N. Valentiniani 31.1, a law
of 451). The constant reiteration of these laws perhaps indicates that these relationships
existed far more regularly than the legislators wanted. One woman named Julia
attempted first to free her slave before cohabiting with him, but this legal loophole was
closed by the emperor Anthemius, although Julia herself was deemed to be free from
prosecution (N. Anthemii 1.1, a law of 468).
Virtually all of the laws surviving from late antiquity on mixed marriages
between slaves and free persons deal with enslaved men and free women. Both the
cohabitation of free men and enslaved women and the emancipation of enslaved
women so as to marry their masters were long-standing Roman customs, and neither
were they condemned in late ancient laws on marriage. One law is an exception to
that rule. In it, a slave woman who cohabited with a decurion (curalis, a member of
one of the provincial municipal councils) faced deportation to a state mine. The man
risked exile to an island and, if he had no close relatives, confiscation of all of his
property. Even the slave woman’s owner risked the confiscation of half of his prop-
erty if he knew of the liaison and allowed it to continue (C. Th. 12.1.6, a law of 318).
Why such a law? Decurions were increasingly harder to come by, both because of
the declining population overall and also because they were often elevated to loftier
social status. Yet decurions were essential to local government because they not only
ran the municipal councils but also provided for the cost of upkeep of buildings and
roads in their communities out of their own wealth. The position was hereditary,
most importantly, and so a man who cohabited with a slave woman might have been
seen as shirking his responsibility to marry and raise a family, especially the legiti-
mate sons who would inherit his obligations.
The marriage of soldiers is another example of late ancient reversals of long-
standing Roman traditions on marriage. Roman soldiers had been forbidden to marry
up until the end of the second century C.E. It meant not that they could engage in no
sexual liaisons, of course, but rather that these liaisons could have no formal stand-
ing, in particular, that soldiers had no right to bequeath military titles or other gains
of war to sons, which might have been dangerous politically. The growing power of
the troops and their political allies at the start of the third century changed all that,
and soldiers received the right to marry despite the practical problems associated
with maintaining a wife and children. 75
By the fourth century, it was assumed in law that soldiers had the right to marry.
The commands of border fortress guards were even made hereditary so that sons
might hold them after their father’s death (C. Th. 7.14.1, a law of 398). Another law
permitted soldiers to bring their wives and children with them and cohabit with them
while they were in active service (C. Th. 7.1.3, a law of 349). Indeed, because there
were also penalties for breach of betrothal in later Roman law, a soldier was
instructed that he could not use the excuse of his absence on a military campaign to
prevent him from marrying his fiancée, and if he delayed the wedding date by more
than two years, she was free to marry someone else without penalty to her or her

family (C. Th. 3.5.5, a law of 332). Likewise, soldiers could not claim military ser-
vice as an extenuating circumstance in cases of adultery, presumably, if they were
separated from their wives and had sought sexual release with a married woman
(C. Th. 9.7.9, a law of 383).
Christian clerics were increasingly denied the right to marry in the fourth and fifth
centuries, in Roman law as well as in the writings of Christian leaders. That earlier
generations of Christian priests and bishops had married is beyond dispute; it is men-
tioned in the Christian bible itself. By the fourth century, however, popular opinion
or at least the opinion of church officials was turning against it. These sorts of sen-
timents are apparent in the minds of late ancient legislators, too. A law of Honorius
and Theodosius II from 420 reads,
It is not seemly that a man who lives a commendable life of stern discipline in this
world should be tarnished by the association of a so-called “sister.” If any persons,
therefore, relies upon any rank whatever in the priesthood, or is distinguished by the
honor of the clergy, he shall know that consorting with extraneous women is for-
bidden to him. . . . Chaste affection, moreover, demands that those women who
obtained lawful marriage before their husbands assumed the priesthood should not
be deserted; for those women who have made their husbands worthy of the priest-
hood by their association are not unsuitably joined to clerics. (C. Th. 16.2.44)
This opinion became that of most of the Greek-speaking churches. In the Latin-
speaking West, in contrast, Christian leaders argued that any kind of marital associ-
ation was unbecoming to clerics, who should either not marry at all or at least refrain
from all sexual activity with their wives if they were married.76 Laws also granted
wives of clerics certain exemptions from public service taxes, which also seems to
imply a positive attitude toward them (C. Th. 16.2.10, a law probably of 320; and
16.2.14, a law of 357).
One law in the C. Th. refers to same-sex marriage. It was issued in 342 by the
emperors Constantius II and Constans, and imposed the death penalty in cases
“when a man marries in the manner of a woman [in feminam]” (C. Th. 9.7.3). The
law is distinctly unclear but seems to borrow from biblical language. It is also
unclear how this law related to social practice. There are certainly examples of
homoeroticism in late antiquity, as throughout history, and even some precedent for
same-sex marriage in the Roman tradition, albeit from only a few examples.77
Because of the language of the law, I have suggested elsewhere that it may refer to
the marriage of men to eunuchs, although I admit that the law does not mention cas-
tration specifically.78 Yet what is clear is the legislators’ hostility to the notion of
same-sex marriage, a hostility matched by other contemporary writings.79
THE QUESTION OF CHRISTIAN INFLUENCE

The antipathy to homoeroticism and clerical marriage, and the new attitudes
toward divorce and remarriage, raises the issue of Christian influence in the C. Th.
It was long assumed by scholars that the emperors who enacted the laws contained
in the C. Th. did so mostly out of Christian piety and with the same ends as other
Christian leaders: promoting celibacy, on one hand, and the indissolubility of
marriage, on the other hand.

Recent scholars have taken great pains to pick apart this thesis. Geoffrey Nathan,
for example, provided three main reasons to question Christian influences on family
legislation in late antiquity: first, because the laws can more easily be explained with
reference to long-standing Roman traditions on the family; second, because
Christian attitudes toward the family were not all that different from Roman ones;
and, third, because there was no unitary Christian discourse on the family in the
period, and there was considerable disagreement about Christian ideals.80 This rea-
soning is less straightforward for laws on marriage: the laws show a more radical
departure from earlier traditions, as I have been arguing, and even though Christian
voices disagreed about some of the specifics of marriage, most held that it was an infe-
rior status to celibacy and encouraged its renunciation even if they permitted it.81 Judith
Evans Grubbs has shown the extent to which particular elements of Constantine’s leg-
islation either conformed to or diverged from the opinions of Christian leaders of his
day; she concluded that Christian influence on this one emperor was minimal, suggest-
ing that such influence was limited by both Constantine’s adherence to and knowledge
of Christian principles.82 Antti Arjava concurred that the general pattern of late ancient
legislation on women is not one of Christian influence.83 Finally, even if individual
emperors were prompted by Christian piety to propose changes in the law to encour-
age Christian behavior, it is not clear the extent to which they involved themselves
in the composition or particulars of legislation, so the question of influence must be
extended more broadly to ask if the whole of the legislating branch of the late Roman
governmental bureaucracy was influenced by Christian teachings; and because only
some of them were Christians, it is all the more doubtful.84
Perhaps the question of influence needs to be asked in the other direction: how
did the laws enacted in late antiquity influence the evolution of Christian practice or
belief? Even a cursory examination shows how Christian writers held many of the
same assumptions that appear in the laws; did they hold those assumptions because
they knew the laws? In one of the many late ancient treatises on virginity, John
Chrysostom noted the laws on marriage and incorporated them into his analysis.
After mentioning the legal restrictions on remarriage after divorce, he suggested that
a woman whose husband beat her might leave her husband without his permission
but would have to wait until his death to remarry.85 (In his mind, this was sufficient
reason for a woman to hesitate to marry.) He also referred to the law when discussing
the seriousness of the sin of adultery.86 Echoing legislators’ emphasis on the indi-
vidual’s consent to marriage, he argued that consent must be freely given to virgin-
ity, too.87 And he noted the financial complications involved when a widowed
woman with children remarried.88 The list of such examples could be multiplied,
although it is outside of the scope of this article, and would probably show how often
Christian writers in late antiquity referred to the laws on marriage and used them to
help them to formulate their own ideas about marriage and marital renunciation.89
The Roman law on marriage as revolutionized in late antiquity had an abiding
influence on Christian societies of the Middle Ages and even modern societies in
Europe and the Americas. Many of the laws of the C. Th. were republished in the law
code of the emperor Justinian in the sixth century and thus remained part of the legal
tradition of the Byzantine Empire that was revived, together with the Code of
Justinian, in Western Europe in the twelfth century. Even before then, portions of the
C. Th. were incorporated into what is known as the Breviary of Alaric, produced in

fifth-century Visigothic Spain, but copies of the C. Th. or parts of it remained else-
where and continued to be used as legal precedent in the West.90 Among the
descendants of Romans, the laws on marriage formulated in late antiquity contin-
ued to be used to regulate all of the various aspects of marriage—betrothals, mar-
ital payments, breaches of marriage, and inheritances stemming from
marriage—for long afterward. Marriage is a matter of considerable debate, even
today. And although we have rejected many central aspects of later Roman
marriage, including the necessity of payments and the emphasis on indissolubility,
we have retained others, like the importance of individual consent. It is worth not-
ing that when Christian leaders make mention of long-standing traditions on
marriage, they usually do not have in mind the early Christian discouragement of
marriage or the Augustan rules of Roman marriage, but rather the set of remark-
able changes to Roman marriage as made in the fourth and fifth centuries and pre-
served in the C. Th.
NOTES
1. See Percy Corbett, The Roman Law of Marriage (Oxford: Clarendon, 1930); and Susan
Treggiari, Roman Marriage: Iusti Coniuges from the Time of Cicero to the Time of Ulpian
(Oxford: Clarendon, 1991). See also Suzanne Dixon, The Roman Family (Baltimore: Johns
Hopkins University Press, 1992), chs. 2-3.
2. For monographs, see Michel Humbert, Le remariage à Rome (Milan: Dott. A. Guiffré,
1972); Judith Hallett, Fathers and Daughters in Roman Society: Women and the Elite Family
(Princeton, N.J.: Princeton University Press, 1984); Jane Gardner, Women in Roman Law and
Society (London: Croom Helm, 1986); Dixon, The Roman Family; and Richard Saller,
Patriarchy, Property and Death in the Roman Family (Cambridge: Cambridge University
Press, 1994); there are, in addition, innumerable journal articles and collected essays on these
topics.
3. Peter Brown, The Body and Society: Men, Women, and Sexual Renunciation in Early
Christianity (New York: Columbia University Press, 1988).
4. Korbinian Ritzer, Le mariage dans les Églises chrétiennes du Ier au XIe siècle (Paris: Cerf,
1962); and Jean Gaudemet, Le mariage en occident: Les moeurs et le droit (Paris, Cerf, 1987).
5. Aline Rousselle, Porneia: On Desire and the Body in Antiquity, trans. Felicia Pheasant
(Oxford: Blackwell, 1988); Gillian Clark, Women in Late Antiquity: Pagan and Christian
Life-Styles (Oxford: Clarendon, 1993); Philip Reynolds, Marriage in the Western Church: The
Christianization of Marriage during the Patristic and Early Medieval Periods (Leiden: E. J.
Brill, 1994); Judith Evans Grubbs, Law and Family in Late Antiquity: The Emperor
Constantine’s Marriage Legislation (Oxford: Clarendon, 1995); Antti Arjava, Women and
Law in Late Antiquity (Oxford: Clarendon, 1996); Geoffrey Nathan, The Family in Late
Antiquity: The Rise of Christianity and the Endurance of Tradition (New York: Routledge,
2000); and Mathew Kuefler, The Manly Eunuch: Masculinity, Gender Ambiguity, and
Christian Ideology in Late Antiquity (Chicago: University of Chicago Press, 2001).
6. Tony Honoré, Law in the Crisis of Empire, 379-455 A.D.: The Theodosian Dynasty and
Its Quaestors (Oxford: Oxford University Press, 1998); Jill Harries, Law and Empire in Late
Antiquity (Cambridge: Cambridge University Press, 1999); and John Matthews, Laying down
the Law: A Study of the Theodosian Code (New Haven, Conn.: Yale University Press, 2000).
7. See Tony Honoré, “The Making of the Theodosian Code,” Zeitschrift der Savigny-
Stiftung für Rechtsgeschichte 10 (1986): 133-222. The Theodosian Code is surely lacking
those laws that had already disappeared before its existence, and even those laws preserved in
it were abbreviated and so might be missing some elements, but it is nonetheless a remarkable

compilation. Matthews’s book (Laying down the Law) in particular includes a detailed analysis of
laws as they are found in the C. Th. and the same laws found in greater detail in other compila-
tions, such as the Sirmondian Constitutions, to show how little they were usually changed.
8. See many of the chapters in The Roman Family in the Empire: Rome, Italy, and
Beyond, ed. Michele George (Oxford: Oxford University Press, 2005), for examples of the
variations apparent from these local studies, although all deal with the early Empire.
9. For summaries of the Augustan legislation on marriage, see Corbett, The Roman Law of
Marriage, 249-50; and Treggiari, Roman Marriage, 60-80. For more detailed accounts of the leg-
islation and discussions of the purpose of the laws, see Leo Raditsa, “Augustus’ Legislation con-
cerning Marriage, Procreation, Love Affairs and Adultery,” Aufstieg und Niedergang der
Römischen Welt, no. 13 (1980): 278-339; P. Cxillag, The Augustan Laws on Family Relations
(Budapest: Akadémiai Kiadó, 1976); and Beth Severy, Augustus and the Family at the Birth of the
Roman Empire (New York: Routledge, 2003), the last of which compares Augustus’ policies with
his own family life. Note that the Augustan laws also leveled penalties against the childless.
10. T. Mommsen and P. Meyer, eds., Codex Theodosianus (Berlin: Weidmann, 1905). All
translations are those of Clyde Pharr, The Theodosian Code and Novels and the Sirmondian
Constitutions (Princeton, N.J.: Princeton University Press, 1952).
11. Evans Grubbs, Law and Family, passim.
12. A number of scholars have tried to calculate the population decline, and all have con-
cluded a serious drop in the Roman Empire in late antiquity. See Arthur Boak, Manpower
Shortage and the Fall of the Roman Empire in the West (Ann Arbor: University of Michigan
Press, 1955); Pierre Salmon, Population et dépopulation dans l’Empire romain (Brussels:
Latomus, 1974); and Josiah Cox Russell, The Control of Late Ancient and Medieval
Population (Philadelphia: American Philosophical Society, 1985). All of these estimates, of
course, must remain tentative given the limitations of the sources.
13. See Andrew Wallace-Hadrill, “Family and Inheritance in the Augustan Marriage-
Laws,” Proceedings of the Cambridge Philological Society 207 (1981): 58-80.
14. See also Michele Salzman, “The Evidence for the Conversion of the Roman Empire to
Christianity in Book 16 of the Theodosian Code,” Historia 42 (1993): 362-78.
15. First noted by Jack Goody, “Strategies of Heirship,” Comparative Studies in Society
and History 15 (1973): 3-20.
16. See Saller, Patriarchy, Property and Death, 161-80, for a discussion of the fideicom-
missum and other aspects of what he calls “strategies of succession.”
17. See Jack Goody, The Development of the Family and Marriage in Europe (Cambridge:
Cambridge University Press, 1983), who considered this change a conscious strategy by
church officials, which assumes that legislators were working in the interests of church offi-
cials. Goody has been criticized by K. Verdery, “A Comment on Goody’s Development of the
Family and Marriage in Europe,” Journal of Family History 13 (1988): 265-70; but defended
by A. Guerreau-Jalabert, “La parenté dans l’Europe médiévale et moderne: À propos d’une
synthèse récente,” L’homme 110 (1989): 69-93; and by Jack Goody himself in The Oriental,
the Ancient, and the Primitive: Systems of Marriage and the Family in the Pre-Industrial
Societies of Eurasia (Cambridge: Cambridge University Press, 1990), 3.
18. See Katharina Wilson and Elizabeth Makowski, Wykked Wives and the Woes of
Marriage: Misogamous Literature from Juvenal to Chaucer (Albany: State University of New
York Press, 1990), who provided numerous examples of the theme in Latin literature. See also
Suzanne Dixon, “The Sentimental Ideal of the Roman Family,” in Marriage, Divorce, and
Children in Ancient Rome, ed. Beryl Rawson (Oxford: Clarendon, 1991), 99-113; Susan
Treggiari, “Putting the Family Across: Cicero on Natural Affection,” in George, The Roman
Family in the Empire, 9-35; and Michele George, “Family Imagery and Family Values in
Roman Italy,” in George, The Roman Family in the Empire, 37-66, all of whom argued for a
sentimental ideal of Roman family life.

19. See Brown, Body and Society, passim; and Thomas Camelot, “Les traités ‘De virgini-
tate’ au IVe siècle,” Études carmélitaines 18 (1952): 273-92.
20. See JoAnn McNamara, “Chaste Marriage and Clerical Celibacy,” in Sexual Practices and
the Medieval Church, ed. Vern Bullough and James Brundage (Buffalo, N. Y.: Prometheus, 1982),
on Latin-speaking regions of the Roman Empire; and see Elizabeth A. R. Clark, “John
Chrysostom and the Subintroductae,” Church History 46 (1977): 171-85, on Greek-speaking
regions.
21. See Treggiari, Roman Marriage, 37-39.
22. Corbett, The Roman Law of Marriage, 8, 175, 233.
23. See Treggiari, Roman Marriage, 43-54; and Beryl Rawson, “Roman Concubinage and
Other de Facto Marriages,” Transactions and Proceedings of the American Philological
Association 104 (1974): 279-305. As Treggiari pointed out, there was also a form of Roman
concubinage (called concubinatus) that was intended to permit long-term cohabitation with-
out any of the legal consequences of marriage. On this last point, see also Thomas A. J.
McGinn, “Concubinage and the Lex Iulia on Adultery,” Transactions of the American
Philological Association 121 (1991): 335-75.
24. See M. Durry, “Le mariage des filles impubères à Rome,” Revue des études latines 47
(1955): 17-25; opposed by J. Reinach, “Puberté féminine et mariage romain,” Revue his-
torique de droit français et étranger 10 (1956): 268-73; supported by Keith Hopkins, “The
Age of Roman Girls at Marriage,” Population Studies 18 (1965): 309-27; and opposed again
by Brent Shaw, “The Age of Roman Girls at Marriage: Some Reconsiderations,” Journal of
Roman Studies 77 (1987): 30-46. On this question, see also Saller, Patriarchy, Property and
Death, 25-41; and Treggiari, Roman Marriage, 39-43, 398-403.
25. See J. Phillips, “Roman Mothers and the Lives of Their Adult Daughters,” Helios 6
(1978): 69-80; and Hallett, Fathers and Daughters. Both Phillips and Hallett used earlier
Roman evidence.
26. Treggiari, Roman Marriage, 65.
27. Susan Treggiari, “Consent to Roman Marriage: Some Aspects of Law and Reality,”
Classical Views 26 (1982): 34-44. On the power of the paterfamilias more generally, see
Saller, Patriarchy, Property and Death, 102-32. See also Richard Saller, “The Social
Dynamics of Consent to Marriage and Sexual Relations: The Evidence of Roman Comedy,”
in Consent and Coercion to Sex and Marriage in Ancient and Medieval Societies, ed. Angeliki
Laiou (Washington, D.C.: Dumbarton Oaks, 1993), 83-104, in which he suggested that
comedic plays present more varied views of marital consent than are presented in the law.
28. Digest 35.1.15, discussed by Gaudemet, Le mariage en occident, 29-31.
29. Digest 23.2.1, discussed by Gaudemet, Le mariage en occident, 24-26.
30. See Treggiari, Roman Marriage, 170-80. See also ibid., 83-124, for an extended dis-
cussion of factors involved in the choice of marriage partner. See also Kuefler, The Manly
Eunuch, 70-76, on the decline of the power of the paterfamilias in the later Roman family.
31. By contrast, the Augustan legislation had only prohibited marriage between senators
or their descendants and freedpersons or actors or children of actors (Digest 23.3.44; see
Treggiari, Roman Marriage, 61).
32. See Treggiari, Roman Marriage, 2-11, for classical definitions.
33. S. Oost, Galla Placidia Augusta: A Biographical Essay (Chicago: University of
Chicago Press, 1968), 70-81. Nathan (The Family in Late Antiquity, 77-83) examined
Honorius’ marriage to his first wife, Maria, in detail.
34. Brent Shaw and Richard Saller, “Close-Kin Marriage in Roman Society?” Man 19
(1984): 432-44. See also M. Corbier, “Les comportements familiaux de l’aristocratie romaine
(IIe siècle av. J.-C.-IIIe siècle ap. J.-C.),” Annales: Économies, sociétés, civilisations 42
(1987): 1267-86. See also the discussion of endogamy in Treggiari, Roman Marriage, 107-19.
On the difficulties of using epigraphical evidence for family studies, see Evelyne Patlagean,
“Familles chrétiennes d’Asie Mineure et histoire démographique du IVe siècle,” in

Transformations et conflits au IVe siècle ap. J.-C., Colloque organisé par la Fédération
Internationale des Études Classiques (Bonn: Rudolf Habelt, 1978), 169-86.
35. See Keith Hopkins, “Brother-Sister Marriage in Roman Egypt,” Comparative Studies
in Society and History 22 (1980): 303-54; and Seymour Parker, “Full Brother-Sister Marriage
in Roman Egypt: Another Look,” Cultural Anthropology 11 (1996): 362-76.
36. A. Lee, “Close-Kin Marriage in Late Antique Mesopotamia,” Greek, Roman, and
Byzantine Studies 29 (1988): 403-14.
37. See Susan Treggiari, “Consent to Roman Marriage: Some Aspects of Law and Reality,”
Classical Views 26 (1982): 34-44, who suggested that this was a law of the emperor Julian that
is no longer extant. See also Arjava, Women and Law in Late Antiquity, 29-37, for the father’s
continued role in arranging his children’s marriages; and Judith Evans Grubbs, “Parent-Child
Conflict in the Roman Family: The Evidence of the Code of Justinian,” in George, The Roman
Family in the Empire, 99-112, who looked at cases involving consent to marriage and the
authority of the paterfamilias from the third century C.E.
38. See Judith Evans Grubbs, “Abduction Marriage in Antiquity,” Journal of Roman
Studies 79 (1989): 59-83; see also Evans Grubbs, Law and Family, 183-202.
39. Suggested from demographic evidence by Richard Saller, “Men’s Age at Marriage and
Its Consequences in the Roman Family,” Classical Philology 82 (1987): 21-34; and supported
from archeological evidence by B. Frier, “Roman Life Expectancy: The Pannonian Evidence,”
Phoenix 37 (1983): 328-44. See also Saller, Patriarchy, Property and Death, 12-25, for a dis-
cussion of the complications for demographic calculations in Roman antiquity.
40. See P. Guichard, “De l’antiquité au moyen âge: Famille large et famille étroite,”
Cahiers d’histoire 24 (1979): 45-60; and Brent Shaw, “Latin Funerary Epigraphy and Family
Life in the Later Roman Empire,” Historia 33 (1984): 457-97.
41. David Herlihy, Medieval Households (Cambridge, Mass.: Harvard University Press,
1985), 18-19.
42. On the classical dowry, see Corbett, The Roman Law of Marriage, 180; Fritz Schultz,
Classical Roman Law (Oxford: Clarendon, 1951), 124; Suzanne Dixon, “The Marriage
Alliance in the Roman Elite,” Journal of Family History 10 (1985): 353-78, at 369-70;
Treggiari, Roman Marriage, 323-64; and Saller, Patriarchy, Property and Death, 204-24.
43. See Sarah Pomeroy, “The Relationship of the Married Woman to Her Blood Relatives
in Rome,” Ancient Society 7 (1976): 215-27; see also Marilyn Arthur, “‘Liberated’ Women:
The Classical Era,” in Becoming Visible: Women in European History, ed. R. Bridenthal and
C. Koonz (Boston: Houghton Mifflin, 1979), 60-89.
44. Corbett, The Roman Law of Marriage, 153; Raditsa, “Augustus’ Legislation concern-
ing Marriage,” 320; and Dixon, “The Marriage Alliance in the Roman Elite,” 359. For com-
plications of this system, see Richard Saller, “Roman Dowry and the Devolution of Property
in the Principate,” Classical Quarterly, no. 34 (1984): 195-205; and Jane F. Gardner, “The
Recovery of Dowry in Roman Law,” Classical Quarterly, no. 35 (1985): 449-53. On the fre-
quency of divorce in the early Empire, see below. Actual amounts required to be left were not
specified, although women were not permitted to inherit more than 100 secterces according
to the lex Voconia of the late Republic, reaffirmed as the ratio Voconiana of the early Empire.
Still, this law could be circumvented by the fideicommissum, described above. For more on
women and inheritance, see Jean Gaudemet, “Le statut de la femme dans l’Empire romain,”
Receuils de la Société Jean Bodin pour l’histoire comparative des institutions 2 (1959): 191-
222, at 215-16; Pomeroy, The Relationship of the Married Woman,” 224; Suzanne Dixon,
“Polybius on Roman Women and Property,” American Journal of Philology 106 (1985): 147-
70; J. A. Crook, “Women in Roman Succession,” in The Family in Ancient Rome: New
Perspectives, ed. Beryl Rawson (Ithaca, N.Y.: Cornell University Press, 1987), 58-82; and
J. A. Crook, “Feminine Inadequacy and the Senatusconsultum Velleianum,” in Rawson, The
Family in Ancient Rome, 83-92.

45. See John L. Comaroff, The Meaning of Marriage Payments (London: Academic,
1980), 4.
46. See Diane Owen Hughes, “From Brideprice to Dowry in Mediterranean Europe,”
Journal of Family History 3 (1978): 261-96.
47. See Corbett, The Roman Law of Marriage, 114-16; and Schultz, Classical Roman Law, 121.
48. Evans Grubbs, Law and Family, 175-77, downplayed its significance, for example;
whereas Arjava, Women and Law in Late Antiquity, 52-62, examined the shift in detail but was
unable to determine its origins.
49. Herlihy, Medieval Households, 16-22.
50. See Donald Engels, “The Problem of Female Infanticide in the Greco-Roman World,”
Classical Philology 75 (1980): 112-20; challenged by William V. Harris, “The Theoretical
Possibility of Extensive Infanticide in the Graeco-Roman World,” Classical Quarterly, no. 32
(1982): 114-16; but supported by Treggiari, Roman Marriage, 409.
51. See James Brundage, Law, Sex, and Christian Society in Medieval Europe (Chicago:
University of Chicago Press, 1987), 110-12.
52. See also Arjava, Women and Law in Late Antiquity, on women’s greater independence
in late antiquity and its relationship to marital renunciation (156-64), on widowhood more
generally (167-72), and on remarriage and its financial complications (172-77).
53. Brundage, Law, Sex, and Christian Society, 94; and Gaudemet, Le mariage en occi-
dent, 59.
54. Brundage, Law, Sex, and Christian Society, 87.
55. Corbett, The Roman Law of Marriage, 208; Raditsa, “Augustus’ Legislation concern-
ing Marriage,” 307; Gaudemet, “Le statut de la femme,” 208; Dixon, “The Marriage
Alliance,” 372; and Treggiari, Roman Marriage, 443-44.
56. Gaudemet, “Le statut de la femme,” 209; Gaudemet, Le mariage en occident, 40;
Evans Grubbs, “Parent-Child Conflict,” 112-22; and Treggiari, Roman Marriage, 459.
Treggiari believed that women in marriages in which they remained under the authority of
their paterfamilias (in marriages called sine manu) were able to initiate divorces once their
paterfamilias was dead already in the late Republic, but only in the second century C.E. were
women under the authority of their husbands (in marriages called cum manum) able to initi-
ate divorce.
57. On the frequency of divorce, see Susan Treggiari, “Divorce Roman Style: How Easy
and How Frequent Was It?” in Rawson, Marriage, Divorce, and Children in Ancient Rome,
31-46; and Treggiari, Roman Marriage, 473-82. On marriage among the lower classes, see I.
Kajanto, “On Divorce among the Common People of Rome,” Revue des études latines 47
(1970): 99-113.
58. See Kuefler, The Manly Eunuch, 76, 86.
59. G. Robina Quale, A History of Marriage Systems (Westport, Conn.: Greenwood,
1988), 201-2. For scholars who considered Christian influences on this law, see V. Basanoff,
“Les sources chrétiennes de la Loi de Constantin sur le repudium (Cod. Theod. III, 16, 1 a.
331) et le champ d’application de cette loi,” Studi in onore di Salvatore Riccobono nel XL
anno sel suo insegnamento 3 (1936): 177-99; and Gaudemet, Le mariage en occident, 70-83.
For scholars who dismissed Christian influences on this law, see Roger Bagnall, “Church,
State and Divorce in Late Roman Egypt,” in Florilegium Columbianum: Essays in Honor of
Paul Oskar Kristeller, ed. K-L. Selig and R. Somerville (New York: Italica, 1987), 45-54; and
Michel Verdon, “Virgins and Widows: European Kinship and Early Christianity,” Man 23
(1988): 488-505, at 491. See also the detailed discussion of this law in Evans Grubbs, Law
and Family, 228-34.
60. In contrast, remarriage seems to have been prohibited only to freedwomen who
divorced their patrons (that is, their former masters) without their husband’s consent; see
Treggiari, Roman Marriage, 450.

61. Bagnall, “Church, State and Divorce,” 55. It should be noted that Bagnall did not
believe Julian’s law to have ever been repealed, because Jovian’s law was not preserved in the
C. Th. But several laws had disappeared before the compilation was made, and Bagnall
believed that Julian’s law existed despite its not being included in the C. Th. See Arjava,
Women and Law in Late Antiquity, 177-89; see also Evans Grubbs, Law and Family, on
Julian’s repeal of the law (232-34), on the later laws on divorce (234-37), and for more later
Roman examples of actual divorces (238-42).
62. Treggiari, Roman Marriage, 262-319, has the most detailed discussion of adultery; see
also Arjava, Women and Law in Late Antiquity, 193-205.
63. See also Evans Grubbs, Law and Family, 205-16, for an extended discussion of these
two laws.
64. See J. Rougé, “Fausta, femme de Constantin: Criminelle ou victime?” Cahiers d’his-
toire 25 (1980): 3-18.
65. Humbert, Le remariage à Rome, 59 ff.; and Treggiari, Roman Marriage, 233-36.
66. See Keith Bradley, “Remarriage and the Structure of the Upper-Class Roman Family,”
in Rawson, Marriage, Divorce, and Children in Ancient Rome, 79-98.
67. Corbett, The Roman Law of Marriage, 120; Schultz, Classical Roman Law, 119-20;
Wallace-Hadrill, “Family and Inheritance,” 65; and Treggiari, Roman Marriage, 365-79.
68. Corbett, The Roman Law of Marriage, 120; and Dixon, “The Marriage Alliance,” 360-
65. Treggiari, Roman Marriage, 379-96, also describes occasions when inheritances could
pass between husbands and wives.
69. See also Arjava, Women and Law in Late Antiquity, on the separation of marital prop-
erty in classical law (133-43) and in later Roman law (143-54).
70. See I. Biezunska-Malowist and M. Malowist, “La procréation des esclaves comme
source de l’esclavage (quelques observations sur l’esclavage dans l’antiquité, du moyen-age
et au cours des temps modernes),” in Mélanges offerts à Kazimierz Michalowski (Warsaw:
Panstwowe Wydawnictwo Nankowe, 1966), 275-80. The ambiguity of the evidence is
described in Keith Bradley, Masters and Slaves in the Roman Empire: A Study in Social
Control (Brussels: Latomus, 1984), 53, 56, 75, 77.
71. See André Chastagnol, “Les femmes dans l’ordre sénatorial: Titulature et rang social
à Rome,” Revue historique 531 (1979): 3-98.
72. See Marc Bloch, “How and Why Slavery Came to an End,” in Slavery and Serfdom in
the Middle Ages, ed. W. Beer (Berkeley: University of California Press, 1975).
73. On Constantine’s problems with the Roman aristocracy, see M. T. W. Arnheim, The
Senatorial Aristocracy in the Later Roman Empire (Oxford: Clarendon, 1972), 5. Evans
Grubbs, Law and Family, 26; and Nathan, The Family in Late Antiquity, 71, believed that
Constantine’s law may have been intended only for the imperial slaves of Sardinia and for a
particular circumstance, but as Evans Grubbs admitted (Law and Family, 46), it is not easy to
know whether a law was universally intended, because only one copy of the law might have
been included in the C. Th. even though numerous copies of it had been sent to different parts
of the empire.
74. See Judith Evans Grubbs, “‘Marriage More Shameful than Adultery’: Slave-Mistress
Relationships, ‘Mixed Marriages,” and Late Roman Law,” Phoenix 47 (1993): 125-54; see
also Grubbs, Law and Family, 261-300.
75. See Brian Campbell, “The Marriage of Soldiers under the Empire,” Journal of Roman
Studies 68 (1978): 153-66, who dated the change to the reign of Septimius Severus and the
turn of the third century. This dating is challenged by Peter Garnsey, “Septimius Severus and
the Marriage of Soldiers,” California Studies in Classical Antiquity 3 (1970): 45-53. See now
also Sara Elise Phang, The Marriage of Roman Soldiers (13 B.C.-A.D. 235): Law and Family in
the Imperial Army (Leiden: Brill, 2001), who provided a detailed and sophisticated discussion
of the scope of the ban on marriage for soldiers, and who also considered the ban to have
ended with Septimius Severus.

76. See JoAnn McNamara, “Chaste Marriage and Clerical Celibacy,” in Bullough and
Brundage, Sexual Practices and the Medieval Church.
77. See John Boswell, Same-Sex Unions in Pre-Modern Europe (New York: Villard, 1994),
3-107; and Craig Williams, Roman Homosexuality: Ideologies of Masculinity in Classical
Antiquity (Oxford: Oxford University Press, 1999), 245-52. This interpretation was opposed
by Brent Shaw, “A Groom of One’s Own?” New Republic, July 18, 1994, 33-41, who used
some Roman evidence.
78. See Kuefler, The Manly Eunuch, 101-2.
79. Ibid., 87-96.
80. Nathan, The Family in Late Antiquity, 185-89.
81. See Brown, Body and Society, both for the multiplicity of voices and for the general
pattern of marital renunciation among Christian writers throughout late antiquity.
82. Evans Grubbs, Law and Family, 28-40, and see also 65-94 for her detailed discussion
of the differences among Christians on marriage and 242-60 for the differences among
Christians on divorce. She believed that only two of Constantine’s laws on the family were
definitely influenced by Christian piety: C. Th. 3.16.1 (restricting divorce) and 8.16.1 (ending
the penalties against the unmarried). Nathan also included detailed sections that contrast
Christian attitudes toward incest with those of late Roman legislators (88-91) as well as atti-
tudes toward and laws on widowhood (116-28).
83. Arjava, Women and Law in Late Antiquity, 257.
84. See Tony Honoré, “Some Quaestors of the Reign of Theodosius II,” in The Theodosian
Code, ed. Jill Harries and Ian Wood (Ithaca, N.Y.: Cornell University Press, 1993), 68-94, who
attributed the composition of the laws to quaestors in the Roman government rather than to
the emperors themselves.
85. John Chrysostom, De virginitate, 40.2-3, 54, in Jean Chrysostome: La virginité, ed.
Herbert Musurillo (Paris: Cerf, 1966).
86. Ibid., 3.10.
87. Ibid., 78.4. Eunuchs, he thus argued, did not merit the spiritual rewards of virginity
because they had not chosen it (ibid., 8.5).
88. Ibid., 37.3.
89. Compare this conclusion to Kuefler, The Manly Eunuch, 161-70, in which I argued
more pointedly that Christian leaders in late antiquity borrowed from existing Roman notions
of sexual vice in formulating Christian principles about it.
90. See Carl von Savigny, The History of the Roman Law during the Middle Ages, trans.
E. Cathcart (Westport, Conn.: Hyperion, 1979); see also Ian Wood, “The Code in Merovingian
Gaul,” in Harries and Wood, The Theodosian Code, 161-77; and Dafydd Walters, “From
Benedict to Gratian: The Code in Medieval Ecclesiastical Writers,” in Harries and Wood, The
Theodosian Code, 200-16.

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Journal of Family History

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Keywords: antiquity; inheritance; law; marriage; Rome; Theodosian Code

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THE NECESSITY OF MARRIAGE

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CHOICE OF MARRIAGE PARTNER AND CONSENT TO MARRIAGE

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ADULTERY AND DIVORCE

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REMARRIAGE AND INHERITANCE

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women who inherited anything from their husbands through a fideicommissum to

MARRIAGE OF SLAVES, SOLDIERS,

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according to scholars, so the opportunities for marital-like relationships may have

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THE QUESTION OF CHRISTIAN INFLUENCE

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