The Roman Law of Marriage [No. 86]
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The Roman Law of Marriage [No. 86]


If you go back and you look at the Roman texts,
romance was not considered to be the dominant features in these systems, they tended to
be planned marriages. Often there was a property transaction moving
in one direction or another, a dowry perhaps, which the woman would bring to the new family. Once she married, she out from control of
her original father, and fell into the family of her new husband. So essentially marriage at that particular
point was a combination of a reproductive arrangement and a property transfer arrangement;
which is why emancipation, the rules on conveyance, was applied very systematically as outlined
in Gaius’ Book One in dealing with this subject as part of the system. And then she fell in with the other family. Generally speaking, you do not want a situation
in which the husband and wife are subject to different controls, because so much of
what they do is in common. So it turns out that the wife goes over to
the husband’s side and leaves the control on the other hand. You then have to worry about the questions
of property settlements on divorce, that’s gonna take place in every society, and custody
arrangement with respect to minor children who survive this kind of situation. Modern divorce lawyers deal with exactly the
same problems that the Romans did. The advice to give to everybody is: “Don’t
try to get a good divorce settlement, try to stay married”, because essentially divorce
is a very expensive game. It’s a bilateral Monopoly game: “I can only
get a divorce from you, you can only get a divorce from me.” These arrangements turn out to be extremely
difficult, and they require some degree of arbitration and control. And in the family setting, essentially what
happens is, you can slowly see the change from this large legal person comprehending
many natural person, to a situation where each natural person has his or her own rights. It evolved on the private side, the question
of women can enter into contracts, be responsible for torts, own property in their own name. In the late 19th century in England and America,
and virtually everywhere else, married women’s property acts of one kind or another tended
to create this sort of parity. This issue was actually not fully resolved
in these systems until 1970. If you look at community property states and
the American West, for example, the earlier version had the wife having equal rights to
the property, but the husband having management and control responsibility; and the wife only
having ability to check him. And then by both Supreme Court decision, and
by statutory change, what seemed to be a dominant one-sided relationship became a relationship
of existential parity, and that’s where it stays. Trying to have different rules for the two
things is a miss, so what happens is people tend to enter into prenuptial agreements,
even for first marriages today, and certainly for second marriages today, where each party
may be widowed and have children separately, so they want to keep the two fortunes away. You start with the Roman stuff, you can see
how the whole thing is going to unfold.

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