The power of husband and wife to divorce at will and for any cause, which we have seen obtained under the old Roman law, was confined to certain causes only by Theodosius and Valentinian (449 A.D.). These emperors asserted vigorously that[[249]] the dissolution of the marriage tie should be made more difficult, especially out of regard to the children. Pursuant to this idea the power of divorce was given for the following reasons alone: adultery, murder, treason, sacrilege, robbery; unchaste conduct of a husband with a woman not his wife and vice-versa; if a wife attended public games without her husband's permission; and extreme physical violence of either party. A woman who sent her husband a bill of divorce for any other reason forfeited her dowry and all ante-nuptial gifts and could not marry again for five years, under penalty of losing all civil rights. Her property accrued to her husband to be kept in trust for the children.
Justinian on divorce
Justinian made more minute regulations on the subject of divorce. To the valid causes for divorce as laid down by Theodosius and Valentinian he added impotence; if a separation was obtained on this ground, the husband might retain ante-nuptial gifts.[[250]] Abortion committed by the wife or bathing with other men than her husband or inveigling other men to be her paramours—these offences on the part of the wife gave her husband the right of divorce.[[251]] Captivity of either party for a prolonged period of time was always a valid reason. Justinian added also[[252]] that a man who dismissed his wife without any of the legal causes mentioned above existing or who was himself guilty of any of these offences must give to his wife one fourth of his property up to a sum not to exceed one hundred librae of gold, if he owned property worth four hundred librae or more; if he had less, one fourth of all he possessed was forfeit. The same penalties held for the wife who presumed to dismiss her husband without the offences legally recognised existing. The forfeited money was at the free disposal of the blameless party if there were no children; these being extant, the property must be preserved intact for their inheritance and merely the usufruct could be enjoyed by the trustees. A woman who secured a divorce through a fault of her husband had always to wait at least a year before marrying again propter seminis confusionem.[[253]]
Justin revokes decrees of Justinian.
Justin, the nephew and successor of Justinian, reaffirmed the right to divorce by mutual consent, thus abrogating the laws of his predecessors.[[254]] Justinian had ordained that if husband and wife separated by mutual consent, they were to be forced to spend the rest of their lives in a convent and forfeit to it one third of their goods.[[255]] Justin, then, made the pious efforts of his uncle naught. Nothing can more clearly illustrate than his decree how small a power the Church still possessed to mould the tenor of the law; for such a thing as divorce by mutual consent, without any necessary reason, was a serious misdemeanour in the eyes of the Church Fathers, who passed upon it their severest censures.
Adultery.
On the subject of adultery Justinian enacted that if the husband was the guilty party, the dowry and marriage donations must be given his wife; but the rest of his property accrued to his relatives, both in ascending and descending lines, to the third degree; these failing, his goods were confiscated to the royal purse.[[256]] A woman guilty of adultery was at once sent to a monastery. After a space of two years her husband could take her back again, if he so wished, without prejudice. If he did not so desire, or if he died, the woman was shorn and forced to spend the rest of her life in a nunnery; two thirds of her property were given to her relatives in descending line, the other third to the monastery; if there were no descendants, ascendants got one third and the monastery two thirds; relatives failing, the monastery took all; and in all cases goods inserted in the dowry contract were to be kept for the husband.[[257]]
Second marriages.
Strict laws of Gratian, Valentinian, and Theodosius.
The legislation of the earlier Christian emperors on second marriages reflects the various feelings of the Church Fathers on the subject. Under the old law, people could marry as often as they wished without any penalties.[[258]] But we have seen that among some of the Churchmen second marriages were held in peculiar abhorrence, and third nuptials were regarded as a hideous sin; while the orthodox clergy, like St. Augustine and St. Jerome, permitted second and third marriages, but damned them with faint praise and urged Christians to be content with one venture. Public opinion, custom, and the influence of the old Roman law were too powerful to allow Christian monarchs to become fanatical on the subject[[259]]; but certain stricter regulations were introduced by the pious Gratian, Valentinian, and Theodosius, in the years 380, 381, and 382.[[260]] As under the old laws any widow who married again before the legal time of mourning —a year—had expired, became infamous and lost both cast and all claims to the goods of her deceased husband. She was furthermore not permitted to give a second husband more than one third of her property nor leave him more than one third by will; and she could receive no intestate succession beyond the third degree. A woman who proceeded to a second marriage after the legal period of mourning, must make over at once to the children of the first marriage all the property which her former husband had given or left to her. As to her own personal property, she was allowed to possess it and enjoy the income while she lived, but not to alienate it or leave it by will to any one except the children of the first marriage. As I have before remarked, Roman law constantly had the interest of the children at heart.[[261]] If there was no issue of the first marriage, then the woman had free control. A mother acquired full right—as the old Senatus consultum Tertullianum had decreed—to the property of a son or daughter who died childless[[262]]; but if she married a second time, and her son or daughter died without leaving children or grandchildren, she was expelled from all succession and distant relatives acquired the property.[[263]]
Justinian moderates these laws to a great degree.