The Institution of Marriage in Old Romanian Law

• Author: Gabriel Asandului
• Position: Assistant Professor. Institute of European Studies Stefan Lupascu", Iasi
• Pages: 1-6

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1. Marriage in Roman society

The institution of marriage is the most important of the institutions related to family. The regulation of the relations that appear between the spouses can be explained by the fact that family is grounded in marriage. The origin of the latter is inextricably linked with the appearance of family, while legally its origins are in the beginnings of law¹.

Roman law defined marriage as the union between man and woman that creates between them an indivisible bond or represents "the link between a man and a woman, a long-life union, a reciprocal participation in the divine and the human law²". In the Roman society, the family was monogamous, patrilocal and patrilinear, within a relationship that could be civil or of kinship. Civil marriage (justae nuptiae) could bring the wife, who had to be no younger than 12³, within the power of the husband (cum manu) who, in his turn, had to be no younger than 14⁴; however, the wife could retain a certain independence from the husband (sine manu). Marriage could be performed through religious ceremony, through purchase or through co-inhabiting for more than a year. Within the cum manu marriage, the wife became one of the husband's agnates⁵ and consequently had to give up the domestic cult of the initial family. If in the case of the cum manu marriage, the husband held a genuine property right over his wife, in the case of the sine manu marriage the husband only held aPage 2right of possession⁶.

In the case of the cum manu marriage, marriage could be terminated in the event of one of the spouses' death, through loss of liberty or citizenship of one of the spouses or through divorce. In the case of the sine manu marriage, marriage could be terminated through agreement of the spouses, thewre were, however, certain restrictions during the later years of the Empire under the influence of Christianity.

According to some legal experts' opinion, for the Romans, marriage was an entirely civil contract, which had no solemn character and was rather of a private nature. There was no law to regulate the marital ceremony, while the intervention of the authorities was not necessary in its formation.

2. Marriage in the Romanian Principalities in the mediaeval times

This brief presentation of Roman legal regulations related to marriage were meant to function as a passage towards the institution of marriage as it existed in the Geto-Dacian area, as there were a number of similarities between the two manners of regulating this type of institution. The family was monogamous, patrilinear and patrilocal. The woman held an inferior position in the Geto-Dacian society; she was, not, however, subject to humiliation⁷. There was a marital ceremony according to which the bride-groom purchased the bride from her parents for a symbolic price. The price varied according to the virtue and beauty of the bride; conversely, the men were purchased by the maidens⁸⁹. The bride was supposed to have a dowry given to her by her parents. The wife took the name of the husband and she had to honour this name; she lived together with her husband and followed him everywhere. The lineage was paternal, as it was in the Roman society. If the mother died, the children were entrusted to the care of the father¹⁰.

The emergence of Christianity was to bring about profound changes regarding the institution of marriage in the area between the Carpathians, the Danube and the Black Sea. The Christian Church considered marriage a sacrament if the religious and the legal ceremonies coincided. The changes that were operated were more of an ethical nature - as the sacrament laid emphasis on the feeling of love between the spouses and on reducing the parents' absolute power over the children. The unequal status of the two spouses remained, while it was sanctioned by divine authority. The woman's inferior status was also due to the type of behaviour imposed on her in society by the Church¹¹.

Up to the moment when written documents were issued, marriage could also be contracted according to the unwritten Law of the Country. The form was "religious benediction", which lead to the belief that it was "written in Heavens". No written act was necessary for the marriage to be considered contracted. The ceremony was manifested especially in the procedure of match-making and the settling of the dowry. The youths were entitled to a dowry which represented an equivalent of the work done by them within the household. It was settled through the banns and public announcements during the wedding ceremony; to it other gifts were added from friends or other relatives with the aim of contributing to the founding of the new family. The dowry documents did not appear before the 17^th century, when it started losing its traditional dimension; it was created for the future bride and would become a financial interest for the fortune-hunters. For this reason, the bride's parents took all sorts of legal measures for the preservation of its integrity, which represented the basis for the modern dowry system.

A typical impediment for marriage was the status of servitude of one of the spouses which, according to The Law of thePage 3Country, brought about the same status for the free spouse and the children resulting from such a marriage. Generally, the children could be legitimate, illegitimate (resulting from a relation outside marriage), adopted, step-children (from one of the spouses before the current marriage) to which blood brothers (fraternized) could be added.

Unlike the legal system of the Romanian countries outside the Carpathians, in Transylvania, family relationships (marriage, divorce, the status of dowry goods) were regulated...