LHMP #370 Grubbs 2019 Singles, Sex and Status in the Augustan Marriage Legislation Chapter 5

The legislation in discussion here was only relevant to upper class women, but also to freedmen/freedwomen of the elite. The intent was to regulate behavior around marriage, divorce, and sexuality, but we must distinguish theory and practice. These notes will primarily cover women and the effects of the law were strongly gendered.

Instituted by Augustus in the 1st century, most of the content of the acts were repealed by Constantine in the 4th century. They did not survive to become part of the Justinian code which influenced later medieval law. There were three separate sets of acts, two on marriage and one on illicit sexual activity. But the contents were later combined and so it’s hard to distinguish the original structure.

The goal of the laws was for men between 25 and 60 and women between 20 and 50 to be married and procreating. Unmarried people were penalized by not being allowed to inherit except from close relatives. Childless couples were restricted in what they could will to each other.

Widows and divorcées were allowed a grace period varying between six months to two years before being required to remarry or face the penalties. If such restrictions on inheritance meant there were insufficient eligible heirs, the remainder of the estate went to the public treasury. (Parents and legitimate children could always inherit.) The exemption for close relatives meant that singlehood did not affect legacies from anyone up to second cousins or closer kin. So the effects were not as severe as the intent.

Conversely, adhering to the law’s intent resulted in benefits. A woman who had three or more children was freed from the requirement to have a male legal representative, and could act for herself legally and financially. Freedwomen (former slaves) gained the same after four children (but only if the children were born after she was freed).

The adultery law focused more on penalties. A married woman who had sex with any man other than her husband committed a crime. The penalty was for half her dowry and 1/3 of her other property to be confiscated. She also lost the right to ever marry again. Enforcement required accusation (typically by the husband or father) and conviction. Part of the intent of having legal penalties was to discourage husbands and fathers from simply killing the adulterous woman outright. But husbands could be penalized if they failed to accuse unfaithful wives of adultery.

Women weren’t able to accuse their husband of adultery. For a man to have sex outside marriage was not a crime unless his partner was in a prohibited class, such as a “respectable” woman or a male citizen. Only another man could accuse a man of adultery, based on the status of the woman he was committing adultery with.

The omission of men from this discussion is not only because of my own focus, but because the laws focused on controlling women’s behavior—and specifically the behavior of “respectable" high ranking women.

Widows who had at least one child were free of the inheritance restrictions if they did not remarry, otherwise they had a grace period before it kicked in. In an age of high child mortality, the laws spelled out how long a child had to survive to “count” for the inheritance rules.

But keep in mind that most Romans would only expect an inheritance from within the exempt degrees of relationship and so would not be disadvantaged by remaining single or declining to remarry. Only the very wealthy were inclined to leave legacies to more distant kin or to friends, and they were also those with the social power to protest the laws to some effect.

The laws also forbade the marriage of people from families of senatorial rank to freedmen/freedwomen, actors, or sex workers. (The article has many more details on this aspect that is not relevant to the Project.)