We begin with the issue of property and betrothal. It is a truism that Roman law was concerned not with marriage, but with the ancestral, property and financial consequences of marriage. It is clear that the same can be said for the post-Imperial law codes. This issue has been at the heart of a majority of discussion of post-Imperial families, and has coloured these discussions, to the extent that other aspects of betrothal and the creation of new households have been marginalised. Property negotiations appear only in the post-Imperial legal texts. In the same way, they are issues confined to the legal sphere in the classical Roman world. In all of the codes, and in stark contrast to betrothal in late Roman law, it is the bride and her family who appear to be the primary recipients of property. Equally different is the apparent movement of the bride into the groom's family network at the point of marriage. It is these two features of post-Imperial, non-Roman betrothal which mark it as different in nature to betrothal conducted according to Roman Imperial law. Nonetheless, there are similarities in the way that these betrothal negotiations are undertaken between the post-Imperial and late Roman law, particularly with regard to the legal and contractual processes of betrothal. In particular, the emphasis on clear negotiations on property transfers, a betrothal ceremony, the use of the term sponsus/a (‘betrothed man/woman’) to denote a betrothed person, and the regulation of a two-year time limit between betrothal and marriage are very much the same as betrothal in the Roman world and presented in a profoundly Romanised fashion.

The presentation of property exchange at betrothal in the legal codes, however, has obscured these similarities. These laws describe a picture of a complex exchange of property between the families of the bride and groom, and the couple themselves, of which the most striking element for many scholars has been the clear shift from Roman dowries, to post-Imperial dotes, morgengabe, metae, pretii and wittimon as new and different forms of marital property transfer.

The legal construction and handling of mothers and motherhood is one of the few areas of familial law that has received a good amount of scholarly attention. Women in late Roman law have been well covered, while the Frankish laws have been thoroughly examined. There are two primary foci of the codes concerning motherhood: the function of the mother as a conduit of property to her children, and the role of the mother as a guardian of her children after the death of the father. In both of these aspects, the law was concerned with one thing above all else: preventing the mother from taking ownership of property she had no right to own, even though she might possess it in usufruct. The protection of the children's inheritance was the primary objective, with the protection of the mother from destitution secondary. It is still notable that the protection of mothers was a concern at all and serves to highlight the self-perceived role of the lawmakers to safeguard women.

In all the codes, maternal and paternal property is kept distinctly separate, as can be seen in the laws which concern property ownership after the death of a husband or wife. In all the Frankish laws, the Burgundian and the Visigothic, both the mother and the father are compelled to maintain their deceased partner's property in usufruct for their children, forbidden from changing or alienating the property in any way. In all the codes, if a mother dies her property is eventually inherited by the woman's children, and is only maintained by their father in usufruct until they are of age. In this way, the mother and child are recognised as a single unit, separate from the mother's agnate line. The woman's parents and siblings inherit only if she has no children; children are the primary heirs of both maternal and paternal property. Thus, all property stays within the conjugal unit of parents and children, passing from the deceased parent to the surviving parent in usufruct and then to the children. Family members outside of that conjugal unit have no inheritance rights once children are born.

In the ancient and post-Imperial worlds, parenthood is not presented as a choice for married people but as a necessity. Only consecration allowed individuals to reject parenthood as a life choice. Becoming a parent is presented in the majority of normative and narrative sources, and likely in common discourse too, as an essential facet of a person's life for both men and women. However, the questions that have been previously asked by historians of the family have all been broadly similar: considering constructions of Medieval childhood, examining age ranges for different stages of childhood, looking at women as mothers and attempting to establish affective relationships between parents and children. The questions that have not been asked by historians, but which are worth asking, are those which currently absorb sociological consideration of the modern family: how does the arrival of a child into a marriage change the lives and relationships of the parents? How do parents view themselves within the role of mother or father? As children grow up, marry, leave home and procreate themselves, what is the role of the parents? Thus, the focus of this chapter is not on how the life of the child changes as it grows, but on how the arrival and growth of a child impacts the adults and the marriage. This section therefore will maintain the focus on the adult couple at the centre of the family unit and examine the transition into parenthood.

In the literary evidence, there are no documented cases of married couples remaining voluntarily childless, except in the rare cases of those who chose to remain forever virginal for religious reasons such as Injuriosus and his wife in Gregory's ‘Two Lovers’, but there are suggestions that involuntary infertility could be a problem. Infertile couples cured by divine miracle are a staple of hagiographical texts. Caesarius of Arles includes in his sermon against abortion and contraception an exhortation to women to stop using potions to improve their fertility and encourage pregnancy. These suggest that there may well have been a thriving market for infertile couples looking for medical or magical solutions.

New households are created through marriage, which begins with a betrothal. Betrothal in the post-Imperial world was a site of negotiation, both for individual families and for competing cultural mores. It has also been a site of tense disagreement for scholars of the period, who have found many unique – and sometimes fictional – elements in post-Imperial betrothal practices, most notoriously the concepts of friedelehe (‘marriage by mutual consent’), kaufehe (‘marriage by purchase’), and raubehe (‘marriage by capture’) as specific and unique forms of marriage defined by their beginnings at betrothal. These fictions have now been decisively rejected by modern scholarship but their lasting influence demonstrates the problems that have been endemic to discussions of the post-Imperial family. However, betrothal and marriage are not the sole points of the beginning of a family unit. They mark the start of the new household and couple, but it is the arrival of new legitimate children that is vital. As we shall see, the production and raising of legitimate heirs and children is a central function of family and marriages in almost all textual genres.

Thus, Part 1 explores the issues which surround betrothal and how households and families were created in the post-Imperial West, highlighting the various competing issues that were raised across different genres of texts. These range from complex negotiations surrounding property transfer between families at betrothal and marriage and the meaning of that property, to the emotional expectations and experiences surrounding betrothal and families. In addition, Part 1 also considers the decision to have children and the specific motivators – both legal and affective – for the decision over whether to reproduce or not. It explores the issues of abortion, infanticide and abandonment in order to fully consider the purpose of such family planning strategies.

Outside of the law codes, and in modern scholarship, it is the role of the disciplinarian and educator that is the most dominant in depictions and discourses regarding fathers, and it appears that the responsibility for guiding and controlling a child's behaviour was the most significant practical change to a man's life once he becomes a father. There are many passionate exhortations for men to be examples of perfect Christian behaviour to their children, notably by Caesarius of Arles. There was also the strong expectation that fathers would become role models for their children, particularly their sons, with their lives becoming an example for their children to follow. Fatherhood was thus presented as a great responsibility, bringing stability to a young man's life. For example, Sidonius Apollinaris notes with relief that a formally wild acquaintance of his had finally married a noble woman because the arrival of children would ensure that he remains on a virtuous path in life.

One theme which runs through the literary texts is the encouragement of physical punishment of children. This motif is one which is very powerful in the post-Imperial West, being a facet of almost every discussion of fatherhood and what being a father entails in a Christian setting and it is related closely to the parallel Christian motif of kindly, loving physical punishment of children. This framed paternal punishment and discipline as an expression of Christian paternal love on a par with the giving of patrimony, but without the worldly connotations. It was also an area that was clearly posited as being exclusively within the remit of a father, with mothers never being depicted as disciplinarians or meting out punishments for misbehaviour. Theodore de Bruyn traced this concept through Late Antiquity and notes that it arose from the biblical quote: ‘Whom the Lord loves, he rebukes and he scourges every son he receives’ repeated at Hebrews 12:16 and Proverbs 3:12, and popularised in Late Antiquity by Augustine. This image of father as loving disciplinarian is theological, as is shown by Salvian's usage of the image to explain why God had allowed the Romans to be defeated by the barbarians, but was also related often to daily life.

The primary focus of attention for the codes in terms of family law, far more so than any other genre, is the division of the patrimony upon the death of the parents. We have already seen this focus on property at the point of betrothal, marriage and death. The protection of property is very much a central concern of all the legal texts and this is consistent with both classical Roman law and late Imperial law. The amount of time and energy expended by the law-makers on describing and regulating the multifarious ways in which a patrimony could be divided depending on the innumerable possible combinations of surviving relatives has driven the secondary literature to focus on concepts of inter-generational conflict and to place patrimony at the centre of a resource-focused and somewhat mercenary parent-child relationships.

Patrimony is certainly central to parent-child relationships, particularly regarding the father, in the legal texts. Behaviour concerning inheritance defined, legally at least, what it meant to be a ‘good’ father and child. As seen in the legal codes, patrimony appears at almost all significant points of a child's life course as seen in the legal codes, most notably at birth, at the birth of their own children and at death. We might speculate that it is also raised obliquely at the point of his marriage as he or his father gives the dos, wittimon, or morgengabe, which potentially came from his own portion. There are several important aspects to patrimony that are worth examining, and have not received the consideration they deserve: first, the importance of the father's moral and legal duty to provide a patrimony, including the emotional meaning of the patrimony, secondly, the complex interplay of obligation, obedience and respect legally and morally owed by the son in return for his father fulfilling his duty. Finally, the importance of the right to inherit, and the legal and cultural differentiation between ‘offspring’ and ‘heir’ are examined.

The father's role as the provider of a patrimony is at the forefront of parent/ child relations as depicted in the codes. It is made particularly clear in two forms of legislation: that concerning disinheritance and that concerning illegitimate children. Both manifestations highlight very different aspects of this paternal duty and its multifaceted importance to the legal compilers.

As we noted in Part 1, the primary cultural, societal and personal motivations for having children were to continue family name and protect patrimony, to ensure care in old age for parents and for emotional fulfilment of the couple. While the first is the motivation most emphasised throughout the primary literature, it is clear that the latter two were also extremely important. Alongside this emerging idea of emotional fulfilment in child-bearing and rearing, we can also see these more emotive discourses of parenthood emerge. Once a person became a parent, as almost every person did, their lives were expected to change drastically. Both parents were expected to undergo an emotional transformation that placed the child at the centre of their occupations. However, the manifestation of these transformations, and the other facets of the construction of parenthood differed drastically between mother and father. Fathers were constructed as firm disciplinarians, expressing their affection for their child through the provision of a patrimony and good training, but affection is very much a central facet of conversations surrounding fatherhood. As God had become a model for fatherhood, so mortal men could mould their fatherly roles and identities in His image, and love is at the centre of that image. Fatherhood is also presented as having an element of legal choice, with men who had produced biological children able to deny being a father due to the fundamental importance of patrimony to the definition of father and child/heir. Notably in this period too we see a shift in the legal construction of patrimony too, with the emphasis moving from the parents to the children as the right to disinherit or use the patrimony to control one's children was removed.

Mothers too are constructed in this post-Imperial, Christian world as being more physically and emotionally involved with their children than their classical Roman/pre-Christian counterparts. They are seen as nurturers and carers and more reliant on their children than previously where mothers were identified as severe moral guides and teachers, analogous to the modern example of Amy Chua. Motherhood in this Christian world is also represented as being a purely biological event, something that cannot be rejected in the same way fatherhood can. While one can choose to be a father even when one has living children, a woman who produces children cannot choose not to be a mother. Motherhood is a bodily thing.

So far, all the discourses of marriage and the issues that have emerged have focused only on the most practical or most negative aspects: death, divorce, property and control. Where marriage is discussed in a Christian context the dominant discourse is very much one of male domination and female subjugation, particularly concerned with appropriate, and therefore deeply restrictive, sexual relations. Such an examination could easily cause a reader to wonder quite why anyone in the post-Imperial world would want to marry. It is worth noting therefore that there were strong discourses of pleasure, harmony and partnership in certain literary contexts. In published personal letters in which the author was motivated to present only an idealised version of himself and his actions, and in works such as epithalamia, marriage is discussed most commonly in terms of archetypes. Keeping in mind the Christian affiliation of all of the major surviving authors of the period, and the positions that most of them held within the Church, it is striking then to see that they promote an idealisation of marriage that is so emphatically unlike that Christian image of domination or the legal construction where property is at the centre. It is instead a rhetoric of idealisation, where partnership and harmony are desired, that permeates the poetry of the age, in epithalamia and funerary lamentation. A discourse of concordia – mutual respect, mutual desires, happiness and harmony, not overly dissimilar to that described by Suzanne Dixon for the classical Roman world – pervades Late Antique and post-Imperial literature.

The wish for harmony (concordia) is a classic trope in any poetry related to marriage, in particular epithalamia. It tends to be the focus of the final lines of the epithalamium, rounding off the images of the bride preparing for the wedding with good wishes for the future. So, the final lines of Venantius's poem for Sigibert and Brunhild present a classic example of the trope. The exact same wishes are repeated in Sidonius Apollonaris’s epithalamium as he hopes for his recipients to pass their live in eternal concord, and the idea appears in every epithalamia of the period. This is a trope of the genre, and its exclusion would be unthinkable to any welleducated gentleman (and potentially offensive to the recipient).

The family in the modern West is an institution undergoing great changes. Some of these changes were conveniently summarised in a New York Times article from September 2012 titled ‘Till Death, or 20 years, Do Us Part: Marriage Through the Contract Lens’. Here Matt Richtel highlighted the difficulties facing American marriage and presents the Twenty-First century as a crisis period for the conception of modern marriage, going so far as to propose the idea of a time limited marriage: a marriage contract with an expiration date. Using the work of a number of prominent scholars in modern American demographic and family research, Richtel examined the two contrasting elements of, and the two major players in, modern American marriage: the economic realities mediated by lawyers and the romantic ideals mediated by churches. There are many perspectives on marriage and family in this article, and in the modern world. In 2014 equal marriage was legalised for gay couples in the UK and the same was passed in the US and Ireland in 2015. Such legal shifts broke open conversations about the purpose of marriage and family, of sex and of childbearing. For some, marriage is the acknowledgment of love (#LoveWins). For some it is the legal recognition of a relationship; for others, it is a spiritual union, or the only correct way to bear and raise children. For a few it remains a religious institution for un-sinful sex. The ideas of family, marriage and children in the Western world are altering and the law is following, or leading, these changes.

The family shape – most notably the centrality of a legal marriage – and the clashing sides both presented in Matt Richtel's article and encapsulated in the equal marriage debate are strikingly similar to those presented in the literature of the period covered by this book. The form and function of the family has long been seen as one of the most useful and significant lenses through which to view any given culture, and the family can be viewed as an important site of cultural change and evolution. This is as true of the period AD 400-700 in Western Europe as it is for America and Europe in the Twenty-First century; it was a period of considerable cultural and political change where the family was the locus for both changing discourses and apparent behaviours.

Liber Constitutionum

Colloquially called the Code of Gundobad, in all the 13 surviving manuscripts the Burgundian law code is titled the Liber Constitutionum. Of these surviving MSS, the earliest can be dated to the ninth century and two primary traditions exist: the first tradition contains a prologue that ascribes the codification to Gundobad, while the other ascribes it to his son Sigismund. The confusion caused by these contradictory prologues has traditionally been solved by ascribing the first 41 titles to Gundobad, while titles 42 - 88 are ascribed to Sigismund. A more recent interpretation, that has now been broadly accepted, is that that majority of the laws were issued by Gundobad, but that they were officially collated and codified by Sigismund. Of the MSS which survive, eight contain a standard 88 titles, while five contain 105 titles. The additional 17 titles are generally accepted to be later additions to the original text.

Whether the Lib. Con. can be seen as an explicitly royal text, in the manner of the Lombard or Visigothic texts, or as an attempt at presenting its laws as being traditional has been debated, although in recent years it has more commonly been viewed as an openly royal work. The co-existence of the Lib. Con. alongside the Lex Romana Burgundionum (LRB) and the ethnic terminologies used by both codifications has been commonly used as evidence of binary divisions between Romans and Barbarians in Burgundy and for ‘personality of law’, whereby the Lib. Con. regulated ethnic Burgundians and the LRB served for ethnic Romans. This traditional interpretation of their co-existence has not gone unchallenged, with scholars such as Patrick Amory suggesting that the two codes were designed to work together, not in opposition. Amory himself has posited the theory that the Lib. Con. existed for rural use, while the LRB was for the city.

In this interpretation both the LRB and the Lib. Con. are considered territorial supplements to classical Roman law, each for specific circumstances, not personalised replacements and it is this interpretation that has prevailed in more recent scholarship. That the compilation of the Lib. Con. had some Roman influence is supported by Sidonius Apollinaris who writes that his friend Syagrius has become a ‘Solon to the Burgundians,’ a statement that has been taken to mean that Syagrius acted in an advisory capacity for Gundobad as he was formulating his laws.

Once a marriage is contracted, it then must be lived. A man and woman who have agreed to marry, and agreed that the aim of that marriage is children, must now negotiate their new identities as husband and wife, and their new roles managing the property that has come to them through their marriage. During the post-Imperial period, this negotiation become even more complex as cultural landscapes changed and the conceptions of marriage changed with them. Marriage is a mutable and multifaceted institution, constantly in flux, and it is therefore extremely difficult to generalise about the experience or meaning of being a husband or wife. This is particularly true for Christian marriage in a period where the meaning of lay Christianity was still being negotiated. We can however explore the conversations concerning marriage that were had across multiple textual genres and examine how marriage and marital relationships were discussed.

In this chapter, we explore the roles of husband and wife as defined by their legal obligations and duties to one another, and the ways in which their behaviours were discussed. Much of this discussion centres on the influence of Christian theology and genre on the construction of marriage and marital roles through discussions of sex, power and gender. We begin by exploring the limits and definitions of marriage in different spheres. In this period, we see a distinction between the legal sphere and the Christian regarding the purpose of marriage. While the legal texts view marriage as being a contractual procedure for the purpose of creating legitimate heirs, and therefore as a mechanism for the lawful passing on of property, the Christian discourse on marriage is much more interested in the process by which those heirs are conceived and views marriage as a mechanism for theologically legitimising sex for reproduction. While both perceived children to be the core purpose of marriage, there were divides in the meaning of reproduction and therefore the meaning of marriage between the two discourses. For the legal sphere, the implications were narrower than in the non-legal: because heirs are the purpose of marriage, the focus of legal concern with marriage was with property. Thus, all legal conversations concerning marital relationships concerned the management, ownership and transfer of property and delineate a marriage and the relationship between a husband and wife purely along these lines.

Alongside the emergence of theological conversations concerning correct sexual behaviour in marriage came conversations around whether marriage could be ended. The concept of the indissolubility (sacramentum) of Christian marriage is one that was developed rather late in Christian thought. It was not until Augustine and his response to the Jovinian controversy of the late fourth century that a fully coherent narrative and theology was constructed. In Augustine's writings, this sacramentum manifests itself in the impossibility of remarriage (for either men and women) after divorce because of the creation of ‘one flesh’ from two bodies at the point of marriage. To Augustine, and those who followed, a marriage between two Christians was more than simply a legal formality for the production of children, but marked the formation of an unchanging and immutable spiritual bond between two souls. The separation of this bond was considered to be theologically impossible, a concept which leads to an extremely hard line on the possibility of separation or divorce in Christian thought, a line which corresponds neatly with the broad pattern visible in the secular legal texts. The primary example of this line of thought is found in Isidore’s tract on church offices sandwiched between his expositions on the correct role of married women. He states that a man and wife cannot be separated because the Church and Christ – the epitome of a spiritual marriage – cannot be separated. He then gives a litany of presumably common but obviously frivolous reasons for marital disquiet or separation, including sterility, deformity, old age, illness, body odour, intoxication, irritability, immorality, luxuriousness, foolishness, gluttony, a quarrelsome nature, an abusive nature or wandering, and states that they are invalid. In common with both the New Testament and the secular laws he does allow female adultery as the sole extenuating circumstance under which a marriage could be ended, although unusually he also includes situations in which the wife is merely suspected of adultery. The notion that female adultery destroyed the spiritual bond between man and wife is common in the patristic age. Apart from this very slight deviation, Isidore's discussion is merely a condensed version of Augustine's theology, drawing on very commonly cited biblical quotes as justification.

That marriage is instituted for the production of children is a truism. However, the elements of this purpose change depending on the discourse context in which they are discussed. While within the legal discourse we see the focus on the outcome and negotiations around property in marriage, within Christian thought, marriage was broadly developed as a theologically legitimate institution in order to combat the problem of sex. As such, marriage in the post-Imperial West in religious discourse is defined fundamentally by its relationship with the limits of theologically acceptable sexual intercourse.

From the very beginning of Christian writing sexual contact in marriage was a significant problem that needed a solution. The earliest discussions to appear surrounding conjugal sexual relations focused on reassuring potentially wary Christians that marriage was a Christian act, legitimised by Christ and the Bible. This appears in response to the late fourth century Jovinian heresy, which argued that for women the married state and the virginal were equal and promoted a relaxed Christian morality. This prompted a strong backlash from the great Church fathers Jerome and Augustine. Both authored responses to Jovinian with dramatically different modes of attack. Jerome responded in AD 392 with the polemical tract Against Jovinian, which aimed to elevate virginity to celestial heights over marriage, but barely discussed actual marriage at all except in negative terms. Augustine aimed for a more neutral ‘third way’ between the two extremes of Jovinian and Jerome. In AD 401, he responded with his On The Good of Marriage, in which he dismantled Jovinian's heretical teachings while still maintaining that marriage had an important and holy role in Christian life, and that sexual intercourse had a significant place within it. Indeed, Augustine defines the very essence of marriage as consisting of a man and a woman who have agreed to have sexual relations with one another exclusively, as long as they are faithful to that agreement and contraception is not used. Although he maintains throughout that sexual intercourse for pleasure is not ideal, he seems uneasily accepting of the fact that it occurs and is willing to pardon it as long as only one partner is receiving pleasure.

Within the sphere of the post-Imperial codes, as is predictable, property is the focus of the majority of conversations around marriage and marital life. But the negotiations that were explored concerning betrothal and at the point of marriage did not stop there, continuing throughout the life of the relationship. These careful negotiations around property ownership, control and division can be useful as they can illuminate the expected legal boundaries of the marital relationship. In particular, it is useful to use these laws to explore the power balance within legal marriage: if women were not allowed to own, control or dispose of property then this places the husband automatically in a powerful position over his wife, but also in a position of responsibility to care for her and her property. This property is separated into that which she has inherited and that which comes to the marriage as part of her wedding gifts. When property consists of land and people and property, this could potentially be a large undertaking.

The legislation covering the financial status of the husband and wife in relation to their own assets and their partners is, as with most things in the post-Imperial codes, obscure and complex, and their modern-day interpretation has been equally complicated. The earliest codes are the least detailed, with the Lib. Con. stating very simply that the husband controlled both his and his wife's property, ‘just as he has power over her, so also over her property and all her possessions’. Katherine Fischer Drew has argued in several places that this law did not in fact mean what it appears to – that women had no control over their property – but meant instead that women subject to Burgundian law could in fact themselves control their ‘personal property,’ based on laws which indicate that girls and women could write legally binding wills. However, the laws she refers to are very clear in referring only to a woman's right to compose a will, own property and have legal competence. They do not refer to a woman’s right to dispose of her property while living, whether to sell it or else to purchase more, while the former law is unequivocal.

In 1997 Pauline Stafford noted that ‘[g]eneralizing about marriage, Medieval or modern, is an exciting but often misleading activity’ and this seems a fitting conclusion for such a diverse chapter. What is clear is that there are competing discourses of marriage and married life across the multiple available genres.

The key issues of sex, power and property reappear regularly but all tend to be separated from one another – authors who discuss sex tend not to discuss property, and so on. Thus, how these issues interacted with one another and how indeed a husband and wife interacted with one another is left obscure. What we can see is that the legal texts and the literary Christian texts diverge strongly in theme and tone, and indeed in relationship to the Imperial West. The legal texts, for the most part, maintain the same ideas and ideologies of the Imperial Roman world – from manus to adultery – showing only minor shifts in the later texts. The literary, Christian texts are where we find the most dramatic shifts in the cultural discussion of marriage and married life. From the correct way to conduct ones’ sex life, to correct power and conversational relations between husband and wife, it is the Christian writers who were introducing innovative conceptions of marriage and of correct marital behaviour. Although they too propagate older, Roman ideals of marital concord, in stylised, rhetorical texts, they also provide new ideas and new models of good and bad behaviour for their readers. Thus, marriage in the post-Imperial world is a difficult thing to generalise about, as it appears in a state of ongoing flux and re-re-negotiation, where Roman Imperial constructions were gradually fading, to be replaced eventually by a Christian notion of marriage as a spiritual, heavenly bond.