DONA´TIO PROPTER NU´PTIAS
DONA´TIO PROPTER NU´PTIAS Subsequent to
the time of the classical jurists under the early Christian emperors, it
became customary for a man, when about to marry, to make a
donatio to his future wife as an equivalent to the
dos which was brought into settlement on
her part. On account of the correspondence between this kind of
donatio and
dos, it is
called in Greek
ἀντίφερνα, and in Latin
contrados, antidos. The meaning of the term
donatio propter nuptias is explained in the
Institutes of Justinian. It was originally called
donatio
ante nuptias because, as there could be no
donatio between husband and wife, it was necessary that the
donatio should be ante-nuptial; but when,
by an enactment of Justin I., it became legal to increase the
donatio after marriage, and by a further enactment
of Justinian even to constitute it after marriage, the old term was no
longer suitable, and so
donatio propter nuptias
was substituted for it by Justinian. The object of the
donatio propter nuptias seems to have been to secure a
provision for the wife. If a
dos had been given
by the wife, or on behalf of the wife, and the husband by the terms of the
settlement was entitled to it, or to a part of it in the case of the wife's
death, it was usual for the husband, or some one on the part of the husband,
to secure something to the wife in the event of her surviving him. The
father of the husband was under the same obligation to make a
donatio ante or propter nuptias as the father of the
wife to provide a
dos. (Cod. 5.11, 7.)
By a constitution of the Emperor Leo it was absolutely required that the
amount secured in this way to the wife should be equal to the amount of
dos the husband might be entitled to. (Cod.
5.14, 9, 10.) According to the legislation of Justinian, the
donatio and the
dos
must be equivalent: if the
dos was increased
during marriage, a similar increase of the
donatio was also necessary. (Nov. 97, 100.1, 2.) The husband had,
during the marriage, the legal and actual control of the property given as
donatio, but such part of it as consisted
in things immovable he could not alienate or pledge even with the consent of
the wife, unless she ratified her previous consent after two years from the
time of giving it, and the husband had other property to satisfy her claim.
The wife was given by law a hypothec over the husband's entire property as
security for the
donatio. If the husband became
impoverished during the marriage, the wife was entitled to the profits of
the
donatio for her support; and the property
was not liable to the demands of his creditors.
[p. 1.691]If
the marriage was dissolved by the death of the wife or by divorce not caused
by the husband's fault, the
donatio became the
absolute property of the husband, unless some person who made the
donatio was entitled to the reversion of it by the
agreement. If the husband died, the wife had a usufruct in the entire
donatio. she was also entitled to share
with her children in the ownership of it. (Nov. 127, 100.3.)
The special provisions, such as the necessity of
insinuatio, which applied to the ordinary
donatio, were dispensed with in this case. The opinions of
modern jurists are much divided as to the notion, purpose, and law of the
donatio propter nuptias. (Cod. 5.3; Cod.
Theod. 3.5;
Inst. 11.7, 3; Glück, xxv. pp. 274-329.)
[
E.A.W]
