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On this page: Divisor – Divortium

DIVORTIUM.

duct the accusation, was called divinatio, as the question here was not about facts, but about some­ thing which was to be done, and which could not be found out by witnesses or written documents ; so that the judices had, as it were, to divine the course which they had to take. (Ascon. in Aryu.ni. ad Cic. Divinat. in Caec. p. 99. ed. Orelli.) Hence the oration of Cicero, in which he tries to show that he, and not Q Caecilius Niger, ought to conduct the accusation against Verres, is called Divinatio in Caeciliunt. Compare c. 15 and 20 of the oration, and Gellius, ii. 4. [L. S.]

DIVISOR. [ambitus.]

DIVORTIUM, divorce. 1. greek. The term for this act was airotettyis or a7r<f7rejii\J/is, the former denoting the act of a wife leaving her husband, and the latter that of a husband dismissing his wife. (Dem. c. Onet. p. 865, c. Neaer. pp. 1362, 1365.) The only Greek states respecting whose laws of divorce we have any knowledge, are Athens and Sparta. In both states the law, it appears, permitted both husband and wife to call for and effect a divorce, though it was much easier for a husband to get rid of his wife than for a wife to get rid of her husband. The law at Athens allowed a man to divorce his wife without ceremony, simply by his act of sending her out of his house (e/cire/xvrexj', aTTOTrejUTretv), but he was bound to restore to her the dowry which she had brought to him, or to pay her the interest of nine oboli per drachma every month, and in ad­dition to this, to provide for her maintenance. (Demosth. c. Neaer. p. 1362.) It would, however, seem that a husband thus dismissing his wife, usually did so in the presence of witnesses. (Ly-sias,- o. Alcib. p. 541.) What became of the children in such a case is not mentioned, but it is probable that they remained with the father. If, on the other hand, a wife wished to leave her hug. band, she was oblig id in person to appear before the archon and to deliver up to him a memorial containing the reasons why she wished to be di­vorced. (Plut. Alcib. 8.) She had to conduct her case quite alone, for as she was in her husband's power so long as the verdict was not given, no one had a right to come forward and plead her case. If both parties agreed upon a divorce, no further pro­ceedings were required, mutual consent being suf­ficient to dissolve a marriage. But if one party ob­jected, an action (aTroTrCjW^ecos or airoXetyeoos siktj) might be brought against the other: the proceed­ings in such a case> however, are unknown. (Heff-ter, Atlien. Gerichtsverf. pp. 250, 414 ; Meier, Alt. Proc. p. 413, &c.)

At Sparta, it seems, a man might dismiss his wife, if she bore him no issue. (Herod, v. 39, vi. 61.)

Charondas, in his legislation at Thurii, had per­mitted divorce, but his law was subsequently modi­fied by the addition, that if divorced persons should wish to marry again, they should not be allowed to marry a person younger than the one from whom he (or she) had been separated. (Diod. xii. 18.)

A woman, aft.T her divorce, returned to the house of her father, or of that relative who was under obligation to protect her if she had never been married at all. In reference to her he was her Kvptos. (Demosth. c. Neaer. p. 3362.) [L. S.]

2. roman. The word divortium signified ge­nerally a separation, and, in a special sense, a dis­solution of marriage. A Roman marriage was dis­solved by the death of the wife or husband, and by divortium in the lifetime of the husband and wife.

DIVORTIUM.

The statement of Plutarch (Round. 22) that the husband alone had originally the power of effecting a divorce may be true ; but we cannot rely al­together on such an authority. In the cases of con-ventio in manum, one might suppose that a woman could not effect a divorce without the consent of her husband, but a passage of Gaius (i. 137) seems to say, that the conventio in manum did not limit the wife's freedom of divorce at the time when Gaius wrote (Booking, Tnstit. i. 229. n. 3). The passage of Dionysius (Antiq. Rom. ii. 25), in which he treats of marriage by confarreatio, declares that the marriage could not be dissolved.

As the essential part of a marriage was the con­sent and conjugal affection of the parties, it was considered that this affection was necessary to its

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continuance, and accordingly either party might declare his or her intention to dissolve the con­nection. No judicial decree, and no interference of any public authority, "was requisite to dissolve a marriage. Filiifamilias, of course, required the consent of those in whose power they were. The first instance of divorce at Rome is Sciid to. have occurred about b. c. 234, when Sp. Carvilius Ruga put away his wife (A. Gell. iv. 3, xvii. 21 ; Val. Max. ii. 1. § 4) on the ground of barren­ness : it is added that his conduct was generally condemned. The real meaning of the story is explained by Savigny with his usual acuteness (Zeitschrift, &c. vol. v. p. 269).

Towards the latter part of the republic, and under the empire, divorces became very common; and in the case of marriages, where we assume that there was no conventio in manum, there was no particular form required. Cn. Pompeius di­vorced his wife Mucia for alleged adultery, and his conduct was approved (Cic. ad Ait. \. 12, 38) ; and Cicero speaks of Paula Valeria (ad Fain. viii. 7) as being ready to serve her husband, on his return from his province, with notice of divorce. (Compare Juv. vi. 224, &c. ; Mart. vi. 7.) Cicero himself divorced his wife Terentia, after living with her thirty years, and married a young woman whom he also divorced (Plut. Cic. 43). Cato the younger divorced his wife Marcia, that his friend Hortensius might marry her and have children by her ; for this is the true meaning of the story. (Plut. Cat. Min. 25.) If a husband divorced his wife, the wife's dos, as a general rule, was restored [Dos] ; and the same was the case when the divorce took place by mutual consent. As divorce became more common, attempts were made to check it indi­rectly, by affixing pecuniary penalties or pecuniary loss on the party whose conduct rendered the divorce necessary. This was part of the object of the lex Papia Poppaea, and of the rules as to the retentio dotis, and judicium morum. There was the re­tentio dotis propter liberos, when the divorce was caused by the fault of the wife, or of her father, in whose power she was : three-sixths of the dos was the limit of what could be so retained. On ac­count of matters morum graviorum, such as adultery. a sixth part might be retained ; in the case of matters morum leviorum, one eighth. The husband, when in faultj was punished by being required to return the dos earlier than it was otherwise re turnable. After the divorce, either party might marry again. (Sueton. Aug. 34.)

By the lex Papia Poppaea, a freedwoman who had married her patronus could not divorce her self ; there appears to have been no other class of

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