A Comparative Analysis of American Common Law and Roman Marriage

Introduction 
Roman marriage differed greatly from marriage today. In the United States, our marital status affects legal issues like alimony, division of property, inheritance, wrongful death suits, workmen’s compensation, social security, immigration, and taxes (Clark 123). However, marriage was more a social institution than a legal one in Rome (Nicholas 80). Its main goals were to promote procreation (Frier Case 12) in a time where few people lived into their forties and to tie families together. For instance, if someone married his daughter to a Senator, she would earn prestigious clarissimi status (Case 42). These marriages would socially connect families and confer status on the daughter’s family. Roman marriage was far more social while our marriage brings legal implications.

Roman governments generally tried not to intervene in marital issues. In Case 75, Emperor Alexander tells us, “Long-standing tradition holds that marriages are free.” Romans were free to marry and divorce as they desired, without government influence. On the other hand, American couples that marry must register with the government to receive legal benefits. Our government also deters divorce with legal restrictions. Roman governments restricted marriage and divorce far less than ours.

However, we also have Common Law Marriage, which more closely resembles Roman Marriage. Common Law Marriage remains free from most government influence by eliminating many formalities that traditional marriage requires. According to Professor Bruce Frier, marriage requirements usually fall into three broad categories. First, process requirements include licensing and ceremonies. Second, capacity requirements decide who can marry. Third, consent requirements declare what type of agreement is required to establish a marriage (Frier Ch. II, p. 2). We will see that, despite cultural differences between Common Law and Roman Marriage, the two are quite similar, especially in their process, capacity, and consent requirements.