De iis qui secundas nuptias contractent.
Concerning those who marry a second time.
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We have already enacted many different laws bettering in certain particulars previous provisions made by us but later found to be deficient – these laws directing our subjects how they should live. The present law, which regulates the most important condition of life, is a general law. For if marriage is a condition so holy as to bring immortality to the human race, perpetually renewing it through the birth of children, God, through his clemency, as far as possible thus granting immortality to our nature, it is proper that we should give much attention to the subject. Other laws do not apply either to all men, all things, or all times; but the attention we pay to marriage interests the whole human race, for the latter is renewed by marriage alone, and hence this subject deserved more consideration than others. No great distinction was made in ancient times between first and second marriages. Fathers and mothers were permitted to marry as often as they wished, without being deprived of any property thereby, and the matter was very simple. But commencing with the time of the elder Theodosius, and under subsequent emperors to Leo, the subject was treated with greater care, and the later, particularly, enacted many excellent laws in regard thereto. We, too, made many provisions on the subject in our Code, but after more careful consideration have deemed it best to make amendments not only to previous laws but also to those enacted by us. For we do not hesitate to enact into law what appears to be better than previous provisions and to make corrections in prior laws without waiting for someone else to make them.
1) Whether marriage is entered into either by mere matrimonial consent or by dowry and prenuptial gift, dissolution thereof may follow either with or without penalty, since every tie among men may be dissolved.
2) Marriages are dissolved by the parties thereto, if living, either by common consent – and no legislation is necessary for such a case, since the agreement disposes of everything – or by agreement for some reasonable reason when the divorce is called bona gratis, or because of some guilt or no guilt at all.
3) A proper cause exists when one of the parties chooses to live a solitary life and in chastity, which leads to better things. Another law of ours also provides that a husband or wife who desires to lead a better life and retire, may dissolve the marriage, leaving the deserted party a solace by giving him a small portion of his or her property. And if the parties made a contract under which the survivor, in case of death, should receive certain property, this must be left to the deserted party, whether husband or wife, since the spouse that chooses such life is as good as dead to the other.
4) So also, captivity is one of the cases when a reasonable excuse exists for dissolving the marriage. And whether a calamity of that kind happens to a husband when the wife remains at home or to the wife when the husband remains at home, a clear and plain reason for the dissolution of the marriage exists. If it is uncertain whether such captive survives, the husband or wife remaining at home must wait five years, at the end of which time another marriage may safely be entered into whether the death of the captive is known or uncertain. Our predecessors, too, considered such situation sufficient for a divorce bona gratia, and we concur, so that, since the parties are separated, no bill of divorce is necessary, and neither party shall suffer any loss, the husband not receiving the dowry, nor the wife the prenuptial gift, but each retaining his or her own.
5) We humanely abolish a certain severity exercised under the former laws. If a man or woman was condemned to work in the mines, by a judicial sentence, the sentence carried slavery along with it, and because of that fact the marriage was dissolved. We abolish this, and do not permit a free-born person to become a slave by reason of punishment. We do not want freedom to be changed to a servile condition, but rather strive to become the liberator of slaves. The marriage, therefore, since it exists between free persons, shall not be affected by such sentence.
6) Exile, which takes the place of the ancient interdiction from fire and water, and which at the present time goes by that term, does not dissolve marriage. This was formerly considered by the holy Constantine as merciful, and we have adopted his opinion.
7) To the grounds for divorce stated by Theodosius the Younger, we add three others, taken from the ancient law. If a woman is so wicked as to purposely produce abortion, heaping grief upon her husband and taking from him the hope of children; or if she frivolously goes bathing with other men out of a spirit of wantonness; or if, during her marriage she negotiates with some other man as to her marriage with him – in such cases husbands may have permission to send a bill of divorce, and to keep the dowry and prenuptial gift. Offenses of that kind shall give just cause for divorce and shall belong to the class fixed by Theodosius of blessed memory, which entails a penalty.
8) We must not pass by the provision properly made by Theodosius the Younger, of blessed memory, to the effect that if a woman who has children remarries, and has children of such marriage, and thereupon the second husband dies, the children of both marriages shall inherit the property of the mother in equal shares if she dies intestate. But the prenuptial gift will go to the children of the respective father, the children of the first marriage receiving all of that given by their father, and the children of the second marriage receiving that of theirs. So each set of children shall receive the prenuptial gift of their respective father, and as the children of the first marriage, so the children of the second marriage that of their father, so that the children may be on an equal footing in this respect. The same rule shall apply to fathers who marry a second time, the dowry given at the time of the first marriage belonging to the children of the first marriage, the dowry given at the time of the second marriage belonging to the children of the second marriage.
9) A mother who has made a present of any property to her child cannot revoke the gift, after entering into a second marriage, under the pretence of ingratitude of the child. It must be presumed in such case that she had no ground for her claim of ingratitude, but advanced such pretext in view of her second marriage, unless it is clearly proven that the child sought her life, laid impious hand upon her, or entered into a scheme to deprive her of all her property.
10) Nor do we permit women who enter into a second marriage to use the title or privileges of their former husband, but they must be content with the position of the subsequent husband. The woman who forgets her former husband cannot derive any further benefit from him.
Given 17 March 536.