§ 178. The Concept of Marriage

According to the definition of Roman law, “marriage is the union of husband and wife, a partnership for the whole of life, a sharing of divine and human law”.[1] As can be seen, three fundamental features of marriage are named in this definition: the physical—that is, the marital bond of one man and one woman; then the ethical, which consists in the complete and indissoluble commonality of all the relations of life between husband and wife; and, finally, the religious-juridical, in the complete community of everything pertaining to faith and to law.[2]

This definition, which depicts with such fullness and precision the natural basis of marriage as a relation between two persons of different sex—a relation that does not consist merely in some contract, but concerns the very life of man—was received also into the canonical collections of the Orthodox Church, and there this same definition is designated as the best, and as fully expressing the essence of the marital bond.[3]

But despite all the excellence of this concept of marriage in Roman law, and despite the legal significance of that concept, by which monogamy was established on the one hand and the indissolubility of a lawfully contracted marital bond on the other, concubinage was nevertheless permitted in the Roman state, just as a mutually agreed, and even a unilateral, dissolution of a lawful marriage was permitted. Both of these—concubinage and the arbitrary dissolution of marriage—stood under the protection of the respective laws. In the older Roman legislation, concubinage (concubinatus, παλλακισμός)—that is, the common life and sexual union of an unmarried man with an unmarried woman, without a lawful marriage—was regarded as a permitted act,[4] while in the later legislation concubinage was regarded as a half-lawful bond, from which the children born in concubinage enjoyed the corresponding rights, as did the concubine herself.[5] It was the same with the dissolution of a lawful marriage. It was open to the husband or to the wife not to wish to remain any longer in the marriage they had lawfully contracted, and they might agree by mutual consent (ex consensu) to divorce; or, what is still worse, one spouse might hand the other a notice (repudium) that he no longer wished to remain in the marital bond, and the marriage in question would thereupon come to an end (§.200). Christianity had to put a stop to this, and to such instability of marital relations in society, as indeed it did.