Custody of Children after Divorce in Byzantine and Post-Byzantine Law
Custody of Children after Divorce in Byzantine and Post-Byzantine Law
Author(s): Theodore KazazakisSubject(s): History of Law, Middle Ages, The Ottoman Empire, Canon Law / Church Law, Comparative Law, Roman law
Published by: Evropská společnost pro právní dějiny, z.s.
Keywords: patria potestas; divorce; custody; parental suitability; depravity of the parent; absence of fault (non-culpability); remarriage; best interest of the children; secular and church jurisdictions;
Summary/Abstract: From Roman to post-Byzantine law, the regulation of child custody after divorce evolved from strict paternal control (patria potestas) toward a system based on parental fault and child welfare. Initially, Roman law favored the father, but by the second century AD, courts began awarding custody to the morally fit parent, including mothers. Under Justinian, custody was granted to the innocent spouse, with added conditions for mothers, such as not remarrying. This principle was preserved in late Byzantine texts like the Hexabiblos and Syntagma, and carried into post-Byzantine jurisprudence through the Nomikon and Nomikon Procheiron. Ecclesiastical courts continued applying these norms, influenced by age, religion, and remarriage. Following the Greek War of Independence, the same fault-based, child-focused approach laid the foundation for modern Greek family law.
Journal: Journal on European History of Law
- Issue Year: 17/2026
- Issue No: 1
- Page Range: 73-81
- Page Count: 9
- Language: English
