Disinheritance of children for lack of parental consent to the marriage in the ius commune and early modern scholastic traditions

Chiodi, Giovanni;Decock, Wim
(2018) Succession law, practice and society in Europe across the centuries — ISBN: [9783319762579], p. 271-335, published

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(en) This paper tackles the topic of disinheritance as a punishment against the marriage of children without their parents’ consent in the Middle Ages and in the Modern Era. According to Roman law, the father’s consent to the marriage of his children-in-power was required. In a society based on parental authority, also many medieval Italian (but also Spanish and French) cities issued statutes in order to preserve the father’s control over his children’s marriages (above all over underage daughters’ marriages). Such a perspective, however, met the opposition of canon law, since according to the laws of the Church parental consent was not necessary to enter into wedlock: marriage was also a sacrament which only concerned the decision of those who were involved. Thus a conflict between lay and church powers arose, since it was hard to coordinate different laws and their respective jurisdictions and to understand which one should prevail. Jurists had to deal with several issues, trying to find a delicate balance: they had to determine whether, in the field of marriage consent, canon law repealed Roman laws or whether lay laws could enforce penalties against those who married without parental permission, for example disinheriting them. Disinheritance was indeed the most serious patrimonial consequence provided for by secular laws against children who did not adhere to the choice of the head of the family. In this way, jurists gave an essential contribution to the solution of a complex problem in the medieval order of powers, and were pivotal to defining the line between lay and Church jurisdiction. The paper is divided into two sections. The premise and Part I, by Giovanni Chiodi, illustrate the most important doctrinal positions of canonists and civilians from the Middle Ages to the Early Modern Era. Part II, by Wim Decock, furthers the debate among early modern scholastics in the sixteenth and seventeenth centuries.
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Chiodi, G., & Decock, W. (2018). Disinheritance of children for lack of parental consent to the marriage in the ius commune and early modern scholastic traditions. In Villata di Renzo & Gigliola Maria (ed.), Succession law, practice and society in Europe across the centuries (p. p. 271-335). Springer. https://hdl.handle.net/2078.5/220038