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45 L. Q. Rev. 178 (1929)
The Augustan Divorce

handle is hein.journals/lqr45 and id is 218 raw text is: THE AUGUSTAN DIVOR CE. T seems as nearly certain as most things are in Roman law that there was 1o comIulsory form of divorce for free marriage in the time of Cicero. True, the orator himself gives us some evidence that certain formalities were observed as early as the Twelve Tables. In Phil. 2, 69, we find the well-known passage: ' Illam suam suas res sibi hahere iussit, ex XII tabulis claves ademit, exegit.' Unf6rtunately, doubts as to the position of the commas make it uncertain whether it was the traditional command or the withdrawal of the keys which appeared in the decemviral legislation. One or both of these forms may have been required in conjunction with remancipatio to dissolve a manus marriage; for, without something to indicate the purpose with which it was undertaken, the remancipatio may simply have resulted in the transformation of a marriage with manus into one without it. Or they may have been tisual without being requisite. At all events, though 'tuas res tibi habeto' appears with slight variations in a great number of sources,' its use must have been optional when the De Oratore was written. It is there recorded 2 that a certain paterjamilias went through the form of marriage at Rome without sending a repudium to the wife whom he had left in Spain. When the status of the children of the second union came to be considered there was keen controversy among the most learned counsel as to whether a first marriage was automatically dissolved by a second. Were not at least certa quaedam verba necessary? We are left to infer, fairly confidently, that some distinct act signifying the intention to divorce was demanded. But the fact that there could have been serious discussion on the point makes it clear that no fixed form was by law established. When Mitteis ' dismisses the narrative as indicating nothing more than a hopelessly bad argument of the advocate trying to make out a case for the validity of the second union, he seems to me to ignore the ' inter peritissimos homines summa de iure E.g. Plautus, Amphitryo, 928; Martial, 10, 41, 2. D. 24, 2, 2, 1. 1, 40, 183-184. 1, 56, 238. fRl6nisches Privatrecbt, p. 152, n. 62.

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