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The Roman Law of Marriage

What can the Roman Law of marriage teach us about the roots of modern marriage laws? Professor Richard Epstein discusses how Roman marriage and property agreements were intertwined. In a Roman marriage, there was a deliberate transfer of wealth and control when the wife was given to the husband. In marriage today, there are still issues involving these transfers of both property and children. Professor Epstein outlines how women came to have equal legal standing in these negotiations and why it is that many couples now choose to have prenuptial agreements. https://youtube.com/watch?v=0u6QcSQGzYI


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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