By Aggeliki-Myrsini Spiliopoulou,
A representative element of modern societies regarding the legally recognized cohabitation of men and women is marriage. From antiquity until now, marriage has been a surviving institution with much importance for the development of the family. That is why it is recognized and perpetuated in all cultures. However, each society and era gives a different meaning to this institution. While the purpose of today’s marriage is the social recognition of a relationship, in ancient Athens the point of a marriage was the birth of offspring, able to become successors of their «κύριος» (“master”, similar to dominus). The legal system around this institution corresponded to its purpose.
Marriage in ancient Athenian society was quite different from today. The appropriate age for a woman to get married was 15 years old and the lack of her consent made no difference legally. However, if she was of an advanced age or had been married before, she could express preferences about her future husband. On the contrary, the consent of the husband’s father was legally out of interest, a fact that underlines the patriarchic values around the institution of marriage. Invalid was also the marriage between relatives in direct line, such as between parents and their child, and siblings who were not half-brothers by the same mother. In 451 B. C., Pericles brought a law that forbid Athenians to get married to foreign women. It was a regulation aiming to decrease the population and migration to Athens, a city that had become a great urban center, by denying to foreigners the ability to give birth to Athenian citizens. Sexual relations between individuals of the same gender were accepted, but they could not lead to marriage. This was quite logical, as the institution of marriage had the ultimate purpose of the birth of children.
A condition for the validity of this legal act was «εγγύης» (“guarantor”), the phrase with which the woman’s «κύριος» promises to deliver his ward to the new «κύριος» –her husband. It was, therefore, an agreement between the parties that the transferring guardian would hand over the woman, while the husband promised to keep her as his wife. If the woman’s old «κύριος» was her father and he was dead, «εγγύης» could be given to another male member of her family, the one that, till then, would have become the κύριος of her old house, «οίκος». The next step for a marriage to be legally committed was «έκδοσις». «Έκδοσις» was a legal act, by which the woman would be delivered by her κύριος. Essentially, the guarantee was the promising legal act, while the «έκδοσις» itself was the transfer of ownership. A basic element sine qua non of marriage was the replacement of the woman’s residence. It was a factum (fact of real life) that indicated to everyone that this woman was now on wife of the man she cohabited with. If cohabitation took place without the procedure of «εγγύης» and «έκδοσις», there was no marriage but concubinage.
The foundation of Athenian society was the «οίκος» (“house”). Athenian citizens were concerned to ensure the continuation of the «οίκος» lineage. Marriage was an institution aimed precisely at this: it was the way to produce legitimate offspring of the head of the «οίκος», a child of two Athenian citizens. The woman was, in every case, under the guardianship of her father or husband. At every stage of marriage, from the choice of her husband to the life she led within the marriage, the instances where her opinion was heard were limited, but they did exist.
References
- Δημάκης, Π. Δ. «Πρόσωπα και θεσμοί της αρχαίας Ελλάδας». Παπαδήμας 2η έκδοση, Αθήνα 2008.
- Τρωιάνος, Σ.- Βελισσαροπούλου-Καράκωστα, Ι. «Ιστορία Δικαίου». Νομική Βιβλιοθήκη, 4η έκδοση, Αθήνα 2010.
- MacDoewll, μτφ Μαθιουδάκης Γ. «Το δίκαιο στην Αθήνα των κλασικών χρόνων». Παπαδήμας, 4η έκδοση, Αθήνα, 2003.
- Biscardi, Α, μτφ. Παν. Δημάκης. «Αρχαίο ελληνικό δίκαιο». Παπαδήμας, 7η έκδοση, Αθήνα 2010.
- Kapparis, K, A. “Athenian Law snd Society”. Routledge, 1η έκδοση, Νέα Υόρκη 2019.
