[Sidenote:  Divorce:  rescript of Theodosius and Valentian.]

The power of husband and wife to divorce at will and for any cause, which we have seen obtained under the old Roman law, was confined to certain causes only by Theodosius and Valentinian (449 A.D.).  These emperors asserted vigorously that[249] the dissolution of the marriage tie should be made more difficult, especially out of regard to the children.  Pursuant to this idea the power of divorce was given for the following reasons alone:  adultery, murder, treason, sacrilege, robbery; unchaste conduct of a husband with a woman not his wife and vice-versa; if a wife attended public games without her husband’s permission; and extreme physical violence of either party.  A woman who sent her husband a bill of divorce for any other reason forfeited her dowry and all ante-nuptial gifts and could not marry again for five years, under penalty of losing all civil rights.  Her property accrued to her husband to be kept in trust for the children.

[Sidenote:  Justinian on divorce]

Justinian made more minute regulations on the subject of divorce.  To the valid causes for divorce as laid down by Theodosius and Valentinian he added impotence; if a separation was obtained on this ground, the husband might retain ante-nuptial gifts.[250] Abortion committed by the wife or bathing with other men than her husband or inveigling other men to be her paramours—­these offences on the part of the wife gave her husband the right of divorce.[251] Captivity of either party for a prolonged period of time was always a valid reason.  Justinian added also[252] that a man who dismissed his wife without any of the legal causes mentioned above existing or who was himself guilty of any of these offences must give to his wife one fourth of his property up to a sum not to exceed one hundred librae of gold, if he owned property worth four hundred librae or more; if he had less, one fourth of all he possessed was forfeit.  The same penalties held for the wife who presumed to dismiss her husband without the offences legally recognised existing.  The forfeited money was at the free disposal of the blameless party if there were no children; these being extant, the property must be preserved intact for their inheritance and merely the usufruct could be enjoyed by the trustees.  A woman who secured a divorce through a fault of her husband had always to wait at least a year before marrying again propter seminis confusionem.[253]

[Sidenote:  Justin revokes decrees of Justinian.]

Justin, the nephew and successor of Justinian, reaffirmed the right to divorce by mutual consent, thus abrogating the laws of his predecessors.[254] Justinian had ordained that if husband and wife separated by mutual consent, they were to be forced to spend the rest of their lives in a convent and forfeit to it one third of their goods.[255] Justin, then, made the pious efforts of his uncle naught.  Nothing can more clearly illustrate than his decree how small a power the Church still possessed to mould the tenor of the law; for such a thing as divorce by mutual consent, without any necessary reason, was a serious misdemeanour in the eyes of the Church Fathers, who passed upon it their severest censures.