for repudiation on other grounds than those sanctioned by the law was forfeiture of all the settled property to the innocent person, if there were no children, and if there were children, the innocent person was to have the usufruct and the children the property in remainder. In graver cases an additional amount from the other property of the delinquent equal to one-third of the dowry or nuptial gift forfeited, was to be so treated. Where the marriage was not accompanied by a settlement, the guilty party was to forfeit one-fourth of his or her property to the other. By the latest legislation (556) the penalty was to be as for dissolution merely by mutual consent.
If a husband beat his wife with whip or stick, the marriage was not dissoluble on that account, but he was to forfeit to her of his own property as much as was equal to one-third of the marriage gift.
As regards persons in military or other imperial service, Justinian eventually enacted (549) that death should not be presumed from absence of news however long, but if the wife hear of her husband's death she must enquire, and, if the authorities of the regiment swear to his death, she must wait a year before marrying again. Otherwise both husband and wife will be punished as adulterers.
Concubinage was a connexion not merely transitory or occasional but continuous, for the gratification of passion, not for the founding of a family of citizens. The children, if any, had no legal relation to their father any more than their mother had. And thus, the economical relations between the man and woman being in law those of independent persons, gifts were not barred in concubinage as they were in marriage. Such a connexion was a matter of social depreciation, but not subject to moral disapprobation if the man was unmarried. Foreigners and soldiers in the early Empire were rarely capable of contracting a regular Roman marriage (matrimonium justum), and a looser connexion became almost inevitable. By Romans in a higher class it was rarely formed except with a woman of inferior position, a slave or a freedwoman, and in such cases was thought more seemly than marriage. With freeborn women it was unusual, unless they followed some ignoble trade or profession or had otherwise lost esteem. Constantine and other Christian Emperors viewed it with strong disfavour, and discouraged it by refusing legal validity to all gifts and testamentary dispositions by the man in favour of the children of the connexion. On the other hand the conversion of concubinage into marriage and consequent legitimation of the children was encouraged, at first under Constantine, only when there were no legitimate children already and when the concubine was a freeborn woman. Marriage settlements having been executed, the children born before as well as any born after became legitimate, and (if they consented) subject to their father's power and alike eligible to his succession. After varied legislation eventually Justinian enacted in 539 that this should apply to freedwomen also and apply whether there were children before,
