Dowries

By Joseph Manning

When I got married I wasn’t given a dowry.

A typical Roman divorce proceeding

A typical Roman divorce proceeding.

In Roman society dowries were given to husbands, either profectitiously (from the wife’s pater familias), or adventitiously (by anyone else).

The jurist Paul said: “it’s in the public interest that women’s dowries are secure, since they can marry because of them.”  Fundamental problems posed to ancient lawmakers were: 1) the ambiguity of what actually comprised the dowry, and 2) who the actual owner was.

A dowry’s purpose was mainly to support the wife or “the burden of marriage.” Dowries posed ownership problems regarding how they differed from a wife’s possessions generally (as opposed to a wife’s allowance supplied by the husband).   Roman law forbid gift-giving between spouses so the ownership of the dowry was pretty important.

Tryphoninus wrote in Disputations: “although the dowry is part of the husband’s property, it is still the wife’s.” What does this mean?  Husbands had great latitude in managing dowry property, but did not have abusus (the power to disown or destroy) without a wife’s consent.

Julian describes a situation where a man was given a farm as dowry, and he used the rent as his wife’s allowance.  The tenant was the wife’s mother, and she died in debt.  After divorce the husband sued his ex-wife for the debt.  We are told that if the rent is considered the wife’s property, the husband may sue her.  But, if the rent funds were simply the husband applying the dowry to support the wife he could not.

One difficulty was differentiating between investments to produce capital and expenses incurred to maintain the dowry (these expenses protected the husband from liability).  Husbands could invest into the dowry and any returns were considered fructus separate from the dowry.   Expenses were not investments giving rise to separate fructus: Ulpian tells us necessary expenses were “those where the dowry will lose value unless they are made.”

So the picture we get is that husbands had a kind of usufruct on the dowry.  Paul wrote in his book on Sabinus that “the husband should be responsible for both his deliberate misconduct and his fault.”  The standard of care a husband owed was that of a reasonable person. Those who did not meet this standard were liable for damages incurred.

Roman law gave wives remedies to stop husbands from squandering the dowry either maliciously or unintentionally.  For example, even if a wife reasonably believed her husband was becoming insolvent she had no right to demand accounting, but she could demand security.  If his funds were lacking, she could sue to have the dowry returned even while the marriage continued.   At any rate, the dowry was returned upon divorce.

In this way, dowries gave some protection to wives in the midst of an otherwise very patriarchical society.  Divorce was freely available, so a husband would be wary to avoid incurring a divorce from his wife if only to avoid paying back the dowry along with any damages he may owe.

When the dowry came due to be returned, husbands were compensated for necessary expenses, but not investments.  But there was overlap between investments and maintenance. Neratius wrote that a husband could not deduct expenses to harvest fruits (even if those expenses were also necessary). So if time or money went into the land not only to harvest but also to preserve the dowry — the husband would not be reimbursed.

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