“IUS QUOD AD PERSONAS

PERTINET”

ROMAN FAMILY LAW

Enkeleda Olldashi
 Roman Family Law
Roman family was the union of all persons who were
under the power of paterfamilias/the head of the
household.
Paterfamilias was sui iuris person(not in anyone else’s
power) and all his descendants were alieni iuris persons
(under the legal power of him).
The persons who would be «agnates» (agnati), were
related to each other by the legal connection. 
Whereas «cognatic» connection was based on a blood
relations.

Enkeleda Olldashi
 Roman Family Law
The powers of the paterfamilias:
Patria-potestas- power over his children
and his grandchildren.
Manus-power over his wife and the
wives of his sons.
Dominium-potestas-power over the
slaves.

Enkeleda Olldashi
 Matrimonium- Marriage
“Nuptiae sunt coniunctio maris et feminae
et consortium omnis vitae, divini et humani
iuris communication” Modestinus
“Marriage is the union of a man and
woman, a partnership for life involving
divine as well as human law”.

Enkeleda Olldashi
 Marriage
Family Code
Marriage, as a legal cohabitation, is founded on
the moral and legal equality of the spouses, in the
mutual sentiment of love, respect and
understanding, as the basis of family unity.
(Article 1/para.2 of Albanian Family Code).
Marriage and family enjoy special protection by
the state (Article 53 (2) of Albanian
Constitution).

Enkeleda Olldashi
 Marriage
Roman marriage was a social and legal
institution for the protection of children's
rights. (class discussion on Article 4 of the
Albanian Family Code.) .
Marriage was a social fact with certain
legal consequences.
Marriage was a solemn union with
significant consequences.

Enkeleda Olldashi
 Betrothal
Betrothal:
was a solemn affair ceremony;
with social and legal importance;
involved the exchange of promises by the fathers for
marriage.
did not have a certain age required for the parties. It can
take place at very early age but not under the age of seven
(Modestinus).
It served as evidence of intention to marry (affection
maritalis), which was a vital constituent of marriage.

Enkeleda Olldashi
Formal requirements of marriage
Matrimonium iustum- a legal marriage had to satisfy legal
requirements and had to be free from legal barriers.
Requirements for concluding a marriage:
1. Age. The parties must have the age required by law
(puberty age).
2. Consent. Affectio maritalis- the intention to enter marriage
or the consent of the parties to marry.
* The parties must have the capacity to give consent (legal
capacity to act) at the time of marriage.

Enkeleda Olldashi
Formal requirements of marriage

Consent could be proved:

- by the parties’ consensus,
- by the consent of the paterfamilias, if the party was under
his potestas (power).
- by the consent of the bridegroom if he was sui iuris and
the consent of guardian’s bride.
- by traditional ceremonies, in the presence of the official
wedding witness.

Enkeleda Olldashi
Formal requirements of marriage
3. Ius Conubium - the civil right to enter into marriage.
( see Article 53 (1) of the Albanian Constitution).
3.1. ius civil union – union between parties having both ius
conubium.
If one or both of the parties lacked ius conubium, the
marriage was not valid under the civil law but was valid
under the ius gentium.
The children took the status of their father.
3.2. ius gentium union- the union between the parties who
lacked cunubium. The children took the status of their mother.

Enkeleda Olldashi
Formal requirements of marriage
4. Forms of marriage:
A. Coemptio - “bride purchase”,
B. Confarreatio - “sharing of bread”,
C. Usus - marriage only with the full
consent of the parties

Enkeleda Olldashi
 Invalidation of Marriage

If the marriage was concluded without respecting

one of the formal requirements, it was declared
void.
Two types of marriage invalidity:
A. Causes of invalidity that did not depend on
the will of the parties (absolute invalidity);
B. Causes of invalidity - depended on the will
of the parties (relative invalidity).
See Articles 33-49 of Albanian Family Code
Enkeleda Olldashi
 Albanian
Family Code
Formal marriage requirements:
a. Age for marriage - article 7

b. Spouses’ consent- articles 8 & 33

c. The capacity to act- articles 12 & 35

d. The form of marriage – articles 8 & 28

Enkeleda Olldashi
 Prohibited marriage
I. TheRoman marriage was a monogamous
union.
A person cannot be a partner in two
marriages at the same time.
A widow could not marry within 10
months of the death of her husband.

Enkeleda Olldashi
 Prohibited marriage
II. Legal barriers and prohibitions:
a marriage between the patrician and the plebeian.
a marriage between a person born free and one who was
not born free.
a marriage between the patron and his freedwoman.
a marriage between guardian and his ward (the person
under the guardian).
a marriage between an adoptive child and adoptive parent

Enkeleda Olldashi
 Prohibited marriage
III. Prohibited marriages between blood related
persons:
an ancestor and a descendant;
parent and child;
grandparent and grandchild;
brother and sister;
uncle and niece;
aunt and nephew; and
cousins until the second degree
Enkeleda Olldashi
 Prohibited marriage
IV. Affinity.
Marriage was prohibited between:
an ascendant or descendant of one's former
spouse, e.g.;
son-in-law and his ex-mother-in-law; and
a former stepmother or stepfather.

Enkeleda Olldashi
 Legal barriers to marriage
( Albanian Family Code)
The previous marriage - article 9
Consanguinity- article 10
Affinity - article 11
A person without juridical capacity –article 12
The guardian and a ward- article 13
An adoptive and the adoptee- article14
If the parties did not meet the legal requirements, then the
marriage would be declared invalid.

Enkeleda Olldashi
 Marital property regimes
Matrimonium cum manus:
a. The wife was under the authority of her husband
or father-in-law.
b. The woman had no legal power over part of her
property.
Matrimonium sine manus:
a. The wife was not under the power of her
husband. This form was very common during the
classical and post-classical period.

Enkeleda Olldashi
 Matrimonium cum manus
Matrimonium cum manus:
 Coemptio: the form of “the bride purchase”;
 Formal marriage in the presence of witnesses.
 The bride “was purchased” by the future husband
in the similar way of buying a property.
 In this form of marriage - the consent for
marriage - was given by theirs paterfamilias and
not by future spouses.

Enkeleda Olldashi
 Matrimonium cum manus
 Confarreatio: the form of “sharing of
bread”.
 A religious ceremony before witnesses and
pontiff.
 This form was applied only between
patricians.

Enkeleda Olldashi
 Legal consequences
(manus marriage)
A manus marriage:
A wife exchanges one family with another.
A woman cannot enter into contracts without the
permission of her husband.
A woman could not own property other than personal
belongings.

Enkeleda Olldashi
 Legal consequences
(manus marriage)
The position of the wife in a manus marriage:
Property owned by wife before marriage passed to her
husband or paterfalias of her husband.
She exchanged one power (patria potestas) with another
power (manus).
She was not an agnate of her family of origin.
She could not inherit from her family of origin.

Enkeleda Olldashi
 Legal consequences
(free marriage)
The position of the wife in a free marriage:
The wife did not exchange family. She was an agnate of
her family of origin.
She remained in the power of her father or her
guardianship.
She owned her property.
She could make contracts and could participate in the legal
process.

Enkeleda Olldashi
 Divorce
A. Dissolution of marriage by the death of one of the
spouses.
B. Dissolution of marriage or divorce by the act of
one or both of the parties to the marriage. When
one or both of spouses agreed on the dissolution of
marriage.
This form of dissolution could be submitted by the
parties to the magistrate for approval.
It was a private process.

Enkeleda Olldashi
 Divorce
B.1. Divorce in manus marriage required :
i. the ceremonial form as well as to create the marriage,
ii. reasonable cause determined by law.
* If there was a causeless divorce the party who caused it was
penalized with the loss of property rights; banned to
remarry; and with the deportation.

Enkeleda Olldashi
 Divorce
B.2. Divorce in a free marriage
The requests were in two forms:
divortium and repudium
I. The parties could be divorced by mutual
consent (divortium)
II. The parties could divorce by unilateral consent
(repudium). In this form the presence of 7
witnesses was required, and a letter notifying the
other party.
See Articles 125-131 and 132-… of Family Code

Enkeleda Olldashi
 Stuprum or concubinage
Concubinage was a sexual union outside marriage.
1. The union could be between:
free persons
unmarried persons
adulterous persons.

2. This union was regarded as a monogamous.

3. It was a union between the persons who had not the same
social status.
See Articles 163-164 of Family Code

Enkeleda Olldashi
 Adoption
Adoption was assessed as a legal method for:

a. the acquisition of "patria potestas";

b. the creation of legal heirs and family;
c. the transfer of legal obligations to the
adapter (contractual obligations).

Enkeleda Olldashi
 Adoption
The adopted person (adoptee):
a. changed family
b. became the member of the family of the adapter
c. ceased to be member of his previous family.
The adopter had to be:
a. at least 18 years old than the adopted person
b. mature to be a father

Enkeleda Olldashi
 There were two forms of adoption in Roman law:
1. adoptio- the adoption of someone alieni iuris
person.
2. adrogatio- the adoption of sui iuris person.
See the article 240 of the “Family code of
Albania”
1. Adoption in the minor’s interest.
2. Adoption was primarily a legal process for the
benefit of the children.

Enkeleda Olldashi Enkeleda Olldashi 31

 Adoption
The adoptee passed from the power of the
previous paterfamilias into the power of
the adopter
The adoptee became a member of the
adoptive family and acquired rights of
intestacy from his adoptive father.

Enkeleda Olldashi
 Adoption
See Articles 241-246 of the Albanian Family Code
Legal conditions for adoption:
1. only the minor may be adopted
2. The adoptive parent must be at least 18 years older than the minor.
Prohibitions for adoption
1. Parent may not adopt their biological children.
2. A guardian cannot adopt their ward.
Consent for adoption:
1. The consent of both parents
2. If the adoptee has reached the age of 10 years old their opinion may
be considered .
3. If the adoptee is 12 years old, their consent is required.

Enkeleda Olldashi
 Adrogatio
This was the adoption of the sui iuris persons
(one paterfamilias adopted another)
The adrogatio was to preserve a family that was
in danger of extinction through lack of legal
heirs.
The adrogation was possible only if:
the adopter was childless
The adopter was unlikely to have children
he was at least 60 years of age
The adopter could only adopt one person.

Enkeleda Olldashi
 Guardianship and curatorship
1. Guardianship and curatorship were the legal
representative.
2. The guardian and the curatorship had to be a mature male
citizen.
3. These institutes have many similarities and differences.
See Article 263 of the Albanian Family Code.
1. A minor may be placed under guardianship and in the
special care of the state when his/her parents are unable to
exercise their parental rights……….

Enkeleda Olldashi
 Guardianship and curatorship
 Institutions were created due to the inability of
persons who could not exercise their legal rights
and obligations.
 They could be:
a. children under the age of puberty (minors)
b. women (regardless of age)
c. Spendthrifts (over the age of puberty)
d. Insane (over the age of puberty)

Enkeleda Olldashi
 Curatorship and Guardianship
The persons placed under guardianship were;
A. Minors (the children below the age of puberty
“inpubes”)
B. Women (their position was as that of the alieni
iuris person)
The persons placed under curatorship were;
all the persons with diminished mental capacity or
without mental capacity

Enkeleda Olldashi
 Guardianship
The role of the guardian.
-to protect the property of the minors (see article
272);
-to act according to their legal rights;
-to manage the affairs of the ward;
-to represent him in all legal actions;
- to give security for the ward’s estate in the form of
formal promise.
The guardian was liable for mismanagement (see
Article 299 of Albanian Family Code).

Enkeleda Olldashi
 Guardianship
Appointment of the guardianship:
1.Tutela testamentaria- testamentary guardianship-
appointment of a guardian by the will of paterfamilias
(see Article 265).
2. Tutela legitimia -statutory guardianship – appointment of a
guardian from the male agnate (see Article 267).
3. Tutela fiduciaria- fiduciary guardianship .
4. Tutela dativa- magisterial guardianship- if there was no
testament, statutory or fiduciary guardian, magistrates
appointed a guardian (see Article 271).

Enkeleda Olldashi
 Types of curatorship
1. Curatorship was the legal representative.
2. He was considered as a special guardian
(see Article 275).
3. He had to protect the legal rights of people
with mental disabilities.

Enkeleda Olldashi
 Types of curatorship
Types of curatorship:
A. cura furiosi- custody of the insane
person
B. cura prodigi- custody of prodigals- the
person who wasted inherited property.
C. cura minorium- custody of minors-
persons between puberty and the age of 25.

Enkeleda Olldashi
Enkeleda Olldashi Enkeleda Olldashi 42