Family in Byzantine law

Toni Šušnjar
 Social background
● After the spread of Christianity, practice of
infanticide ceases, stopping demographic
decline
● Byzantine Church rejected the Western ideal of
celibate
● Under the influence of the Church, state forbids
incest, paedophillia, abortion, and sodomy
●
In 10th century and later family increases in
importance – formation of dynasties and feudal
families
 Justinian's law
● Pater familias keeps authority over his own
children as well as children of his sons
● Daughter usually stays under father's authority
● Mariage cannot be arranged with anyone closer
than first cousins
● Senator may not marry a freedwoman
● Master may not marry a freedwoman without
her consent
 Justinian's law
● Marriage requires consent of both sides
● Husband could kill wife and lover, and father his
daughter, should he catch them in adultery
(infidelity)
● Husband and wife both could request divorce
for any reason
● Consentual divorce was not punished; one-
sided divorce resulted in financial punishment
for the side initiating it
 Justinian's law
● A married man could not have concubines
● Children by concubines were illegitimate and
had no inheritance rights
● A widower could take a concubine to avoid
spreading apart inheritance
● A concubine was treated as a legal wife for as
long as she lived in the house
 Justinian's law
● After marriage, husband and wife both keep
ownership of personal things
● Children of concubines were allowed limited
inheritance rights through father
● Wife becomes an owner of dowry
● In case of adoption, adoptee has to be at least
18 years younger
● Patria potestatis can be gained by legitimizing
children from concubinate
 Ecloga
● Marriage could be signed when boy was 15 and
girl 13, under condition that both, as well as
their parents, consent to marriage
● If one partner died without children, other
partner would get a quarter of belongings, while
the remainder would go to dead partner's
relations
● If husband had died and left children, wife
would become head of the house
 Ecloga
● Adultery could be punished by whipping,
whipping and expatriation (for man), or cutting
of the nose (wife and adulterer)
● Persons in incestuous relationship were
punished by beheading
● Woman that had attempted abortion was
punished by whipping and expatriation
● Homosexual acts were punished by castration
 Tutelage and guardianship
● Unlike roman law, in byzantine law tutor could
not legally alienate protege's belongings
● Tutelage ceased once protege reached
adulthood
● Under Justinian, tutelage takes a form of care,
not ownership
 Abortion
● Life was held to begin at conception – abortion
was thus equated with infanticide (murder)
● Christianity also introduced protection of
newborns and babies
● Abortion was allowed only if pregnancy
endangered life of mother; in practice, it was
also allowed in case of rape
 Byzantine law - conclusion
● Byzantine law is Roman law with Christian
additions
● It tries to protect life, marriage and family
● It also has some protection of women
 Comparison with Croatian law
● Croatian law ensures equal status of wife and
husband in all respects – impossible in
technologically primitive society
● However, freedom of divorce allows significant
freedoms in practice
● Both Byzantine and Croatian law attempt to
protect children
● In Croatian law, extramarital union is legally
equated to marriage after three years – not the
case with Byzantine law
 Comparison with Croatian law
● Both legal systems require mutual consent for
marriage
● Legal age for marriage much lower in byzantine
law
● Both legal systems forbid marriage of
individuals in vertical relationship (parent –
child) or in horizontal relationship closer than
first cousins (children of two brothers / sisters)
 Comparison with Croatian law
● Croatian law divides property into marital
(common) and personal
● In Byzantine law, all property is personal
● Both legal systems prevent parents from
disposing of children's property
● In both systems marriage can be nullified by
request from either side, but Byzantine law
penalized one-sided divorce
 Comparison with Croatian law
● In both legal systems a minor does not have full
control over property and has to have
permission by an adult; Croatian law sets age
limit at 15 years, while Byzantine sets it at 25
years