Las uniones extramatrimoniales ante la falta de conubiumfundamento jurídico de los impedimentos matrimoniales en la Roma clásica

Abstract

With this doctoral Thesis we have deepened on the legal nature and constituent elements of the concept of marriage, as it has evolved through the History of Rome. We have analyzed how the absence of physical capacities and legal requirements determined certain prohibitions or impediments to marriage denominated "extramarital unions", which emerged in the period of greatest splendor of Rome, that is, in the classical period or also known as the political phase of the Principality of Augustus. In the context of Family Law, the concept of marriage an its evolution in Rome, merited specific research because of the shortage of classical sources that regulate this legal field, since we only keep the postclassic and justinian vision. In this sense, nowadays, the interest to know which is the foundation and legal evolution of the institution of marriage to understand what we call "Crisis of the traditional family" and solve the loopholes that exist in our legal system, justify the main objective of making a legal interpretation of the texts that we have, in order to reflect the impediments to getting a matrimonium iustum during the term of classical Roman Law. This legal analysis has resulted in a complete and original classification of ius conubii limitations, that not only includes the extramarital unions in classical Rome, because we have identified six criteria for classifying the unions. That general objective justified the investigation line "Family Law", in which we have been working for several years. We start with the importance of the conubium, considered as a right or a legal capacity for marriage; the lack of this essential requirement determined its absence in Rome. This fact leads us to give a special relevance to conubium in the classical Rome period, based on the following reasons: i.- the first, the absence of legal texts that regulate not only the marital institution but those other extramarital unions, designated as such by classical Roman Law, not to comply with the requirements to be considered as a iustum matrimonium; ii.- the second reason, this phase being the period of greatest glory, not only to Law but to other fields like Literature, Poetry and Art. Comparing how iniustum marriages were limited with the various unions that are emerging today, can help us to understand the present legal changes in the marital institution. For these reasons, the lack of doctrinal systematization between marriage restrictions because of the disparity of texts regulating this matter, has favored a personal and homogeneous grouping of such limitations. However, we have faced two obstacles that somehow hindered us the legal analysis of classical family institutions, such as, the absence of a legal method that can be used by lawyers to apply to any line of research that focuses on Private Law, and how that lack, encourages an interdisciplinary research. We have also considered necessary to specify the exact content of the term impedimentum. Although its origin comes from the Canon Law as it has been confirmed by the Communis opinio, we found earlier sources in which it was used with a generic sense to refer to the set of constraints or limitations, arising during the classical period, which precluded the celebration of a valid marriage according to Roman Law and its full effects. This justifies that throughout our discussion, we talked about the absence of conubium or impedimentum, according we were in the Classical or Justinian Law. In summary, the paucity of studies dealing with the legal regulation of marriage limitations in the classical Roman Law has led us to the involvement in the present Thesis. With it, we aimed to deepen the research initiated in the author´s DEA research work, based on marital and extramarital unions existing from the classical period to the justinian phase, as well as the legal ground of matrimonial impediments.