Concubinage (law)

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In contemporary civil law, concubinage is a legal term that is sometimes used for an interpersonal, intimate relationship between a man and a woman, or, depending on the jurisdiction, unmarried couple, [1] [2] in which the couple wish to cohabit, but do not want to or cannot enter into a full marriage. [3]

Contents

In the legal system of the Philippines, concubinage also has a distinct criminal usage in the 1930 Revised Penal Code, relating to adultery. It is quite distinct from other legal usage.

The term concubinage also has a wider usage as a term relating to the keeping of concubines [4] that has been applied to a wide variety of historical situations that have entailed various degrees of freedom, power and privilege for the women involved. In the twenty-first century, the term has come primarily to refer either to an extramarital mistress or a sex slave. [3]

Etymology

The use of the word concubinage as a legal term comes from the related Latin legal term concubinatus , [5] : 304  which in ancient Rome regulated the “permanent cohabitation” of a “monogamous union between a man and a woman” who were not legally married. Though similar to legal marriage, these relationships carried fewer benefits. [6]

Under Roman Law, where monogamy was expected, concubinage was an institution that did not translate into rights to property, inheritance or social rank, [5] : 304, 309  though the practice was equally not viewed unfavourably. There were terms for both the female (concubina) and the male (concubinus) for the beholden parties in such arrangements. [7] The title concubina was often inscribed on tombstones by mourners of the deceased. [8]

The advent of Christianity brought “profound change” and spelled the end for the Roman institution of concubinage by promoting monogamous marriage and denigrating sexual relations outside of marriage as illegitimate and immoral. [8]

Modern jurisdictions

France

In France, direct parallels are drawn between the meaning of concubinage in Roman law and its contemporary usage as a synonym for civil union, [9] [10] where it is derived from the Napoleonic Code. [11] While the Napoleonic Code or French Civil Code defined concubinage, it did not, however, address their status, with Napoleon Bonaparte, at the time of the drafting, stating, "As concubines are not interested in the law, the law shall not have to take interest in them." [8]

Instead, the current legal terminology and usage of concubinage in French law owe their existence to a 1970 landmark decision by the Cour de Cassation, [12] which "broke with precedent by concluding that opposite-sex concubines or cohabitants could claim compensation for their loss following the accidental death of their partners due to the actions of a third party." [8] Following legislative developments also conferred rights to cohabitants in areas such as parentage (filiation in French law), welfare, taxation and, finally, penal law, with the decriminalization of adultery in 1975. [8]

In 1999, concubinage was legally recognized for both opposite and same-sex couples and article 515-8 of the French Civil Code now defines it as a "union of fact, characterized by a shared life presenting a character of stability and continuity, between two persons, of different sexes or of the same sex, who live as a couple". [8] Since the 1999 ruling, the term concubinage, which is "mostly viewed in a negative way", has increasingly fallen out of favour and been replaced in general usage with the term cohabitation. [13]

Philippines

Law in the Philippines criminalizes adultery and what it terms concubinage, both of which are treated as sexual infidelity in the Family Code and deemed "crimes against chastity" under the Revised Penal Code (RPC). [14] In this jurisdiction, the term concubinage forms part of dualistic statutory approach to adultery that discriminates against wives. Under the law, “adultery” can only be committed by a wife and an extramarital lover and requires only that the husband provide proof of the affair. [14] It is defined under Article 333 of the RPC. [15]

Concubinage as committed by a husband demands a higher burden of proof, requiring the wife to provide both evidence of an affair and of the husband's keeping a mistress in the conjugal dwelling, having sexual intercourse under "scandalous circumstances" or having lived together with his mistress in any other place. [14] It is defined under Article 334 of the RPC. [15]

The sentencing is also different and forms part of a broader pattern of sexually discriminatory legislation in the Philippines, where there is also no divorce law. [14] [15]

United States

The term was used in the US legal system, notably in Louisiana, with a similar meaning to that in the French legal system, well into the 20th century. [16] [17]

Little similarity remains between modern US laws on cohabitation and historical laws on concubinage, which, as constitutional prohibitions on discrimination between children have advanced has been labelled "reminiscent of a bygone era" and "no longer a distinct entity subject to clearly defined rules". [18]

See also

Notes

1. ^ "[marriage] seems to have had a double object, first, to establish between husband and wife, perfect equality of rank, of condition and of dignity, honor, dignitas; it is this which distinguishes it precisely from concubinatus, called as well inaequale conjugium." [5] : 309 
2. ^ "Marriage implied the intention of the husband to have a legal wife, to raise her to his rank, to make her his equal, and the corresponding intent of the wife; this was called the affectio maritalis (‘marital affection’)." [5] : 304 

Related Research Articles

<span class="mw-page-title-main">Concubinage</span> State of living together as spouses while unmarried

Concubinage is an interpersonal and sexual relationship between a man and a woman in which the couple does not want or cannot enter into a full marriage. Concubinage and marriage are often regarded as similar but mutually exclusive.

<span class="mw-page-title-main">Marriage</span> Culturally recognised union between people

Marriage, also called matrimony or wedlock, is a culturally and often legally recognized union between people called spouses. It establishes rights and obligations between them, as well as between them and their children, and between them and their in-laws. It is nearly a cultural universal, but the definition of marriage varies between cultures and religions, and over time. Typically, it is an institution in which interpersonal relationships, usually sexual, are acknowledged or sanctioned. In some cultures, marriage is recommended or considered to be compulsory before pursuing any sexual activity. A marriage ceremony is called a wedding.

Cohabitation is an arrangement where people who are not married, usually couples, live together. They are often involved in a romantic or sexually intimate relationship on a long-term or permanent basis. Such arrangements have become increasingly common in Western countries since the late 20th century, being led by changing social views, especially regarding marriage, gender roles and religion.

Adultery is extramarital sex that is considered objectionable on social, religious, moral, or legal grounds. Although the sexual activities that constitute adultery vary, as well as the social, religious, and legal consequences, the concept exists in many cultures and is similar in Christianity, Judaism and Islam. Adultery is viewed by many jurisdictions as offensive to public morals, undermining the marriage relationship.

Legal separation is a legal process by which a married couple may formalize a de facto separation while remaining legally married. A legal separation is granted in the form of a court order. In cases where children are involved, a court order of legal separation often makes child custody arrangements, specifying sole custody or shared parenting, as well as child support. Some couples obtain a legal separation as an alternative to a divorce, based on moral or religious objections to divorce.

<span class="mw-page-title-main">Wife</span> Female spouse; woman who is married

A wife is a woman in a marital relationship. A woman who has separated from her partner continues to be a wife until their marriage is legally dissolved with a divorce judgment. On the death of her partner, a wife is referred to as a widow. The rights and obligations of a wife to her partner and her status in the community and law vary between cultures and have varied over time.

Common-law marriage, also known as non-ceremonial marriage, sui iuris marriage, informal marriage, de facto marriage, or marriage by habit and repute, is a legal framework where a couple may be considered married without having formally registered their relation as a civil or religious marriage.

<span class="mw-page-title-main">Marriage in ancient Rome</span> Social institution in the classical Roman civilization

Marriage in ancient Rome was a fundamental institution of society and was used by Romans primarily as a tool for interfamilial alliances. Roman marriage was a monogamous institution: Roman citizens could have only one spouse at a time but allowed divorce and remarriage. This form of monogamy in Greco-Roman civilization may have arisen from the relative egalitarianism of democratic and republican city-states. Early Christianity embraced this ideal of monogamous marriage, and perpetuated it as an essential element in many later Western cultures.

<span class="mw-page-title-main">Husband</span> Male spouse; man who is married

A husband is a male in a marital relationship, who may also be referred to as a spouse. The rights and obligations of a husband regarding his spouse and others, and his status in the community and in law, vary between societies and cultures, and have varied over time.

<span class="mw-page-title-main">Scots family law</span>

Scots family law is the body of laws in Scotland which regulate certain aspects of adult relationships and the rights and obligations in respect of children.

Same-sex relationships are recognised in the microstate of Monaco. On 4 December 2019, the National Council passed a bill establishing cohabitation agreements, offering both same-sex and opposite-sex couples limited rights and benefits in the areas of inheritance and property. The law took effect on 27 June 2020.

Largely unrecognised by modern courts, concubinage – the formal position of a mistress maintaining a religiously-sanctioned partnership with a man to whom she is not wed – has a varied history when it has appeared in Canada.

The Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 is an Act of the Oireachtas which allows same-sex couples to enter into civil partnerships. The Act also provides rights for participants in long-term cohabiting relationships who have not entered into a civil partnership or marriage. There is no difference, under the Act, in the rights and obligations accorded to opposite-sex cohabiting couples or same-sex cohabiting couples; however, there are significant differences between the rights and obligations accorded to civil partners (same-sex) and those accorded to married couples (opposite-sex). The Act marks the penultimate legal step towards the recognition of same-sex partnerships; following the Marriage Act 2015, same-sex partners had access to marriage on the same basis as opposite-sex partners, with civil partnership no longer available.

Marital rape is illegal in all 50 US states, though the details of the offence vary by state.

<span class="mw-page-title-main">Fornication</span> Name for pre-marital sexual intercourse

Fornication is generally consensual sexual intercourse between two people not married to each other. When one or more of the partners having consensual sexual intercourse is married to another person, it is called adultery. Nonetheless, John Calvin viewed adultery to be any sexual act that is outside the divine model for sexual intercourse, which includes fornication.

Palimony is the division of financial assets and real property on the termination of a personal live-in relationship wherein the parties are not legally married. The term "palimony" is not a legal or historical term, but rather a colloquial portmanteau of the words pal and alimony. Nevertheless, numerous "secondary" legal sources refer to the term, and attempt to describe its influence and implications upon actual statute law.

Adultery laws are the laws in various countries that deal with extramarital sex. Historically, many cultures considered adultery a very serious crime, some subject to severe punishment, especially in the case of extramarital sex involving a married woman and a man other than her husband, with penalties including capital punishment, mutilation, or torture. Such punishments have gradually fallen into disfavor, especially in Western countries from the 19th century. In countries where adultery is still a criminal offense, punishments range from fines to caning and even capital punishment. Since the 20th century, criminal laws against adultery have become controversial, with most Western countries repealing them.

<span class="mw-page-title-main">Islamic views on concubinage</span> Muslim perspectives on retaining concubines

In classical Islamic law, a concubine was a slave-woman with whom her master engaged in sexual relations. Concubinage was widely accepted by Muslim scholars in pre-modern times. Most modern Muslims, both scholars and laypersons, believe that Islam no longer accepts concubinage and that sexual relations are religiously permissible only within marriage.

A contubernium was a quasi-marital relationship in ancient Rome between a free citizen and a slave or between two slaves. A slave involved in such relationship was called contubernalis.

A concubinatus was an institution of quasi-marriage between Roman citizens who for various reasons did not want to enter into a full marriage. The institution was often found in unbalanced couples, where one of the members belonged to a higher social class or where one of the two was freed and the other one was freeborn. However, it differed from a contubernium, where at least one of the partners was a slave.

References

  1. ↑ Kelleher, M.A. (December 2002). "'Like man and wife': clerics' concubines in the diocese of Barcelona". Journal of Medieval History. 28 (4): 349–360. doi:10.1016/S0304-4181(02)00041-6. S2CID   159811026.
  2. ↑ Sánchez-Cordero, A. (Spring 1981). "Cohabitation without Marriage in Mexico". American Journal of Comparative Law. 29 (2): 279–284. doi:10.2307/839621. JSTOR   839621.
  3. 1 2 Kushner, Nina (2008). "Concubinage". In Smith, Bonnie G. (ed.). The Oxford encyclopedia of women in world history. Oxford [England]: Oxford University Press. ISBN   9780195148909.
  4. ↑ Collins English dictionary (3rd updated ed.). Glasgow: HarperCollins Publishers. 1994. p. 334. ISBN   9780004706788.
  5. 1 2 3 4 Bierkan, Andrew T.; Sherman, Charles P.; Stocquart, Emile (March 1907). "Marriage in Roman Law". The Yale Law Journal. 16 (5): 303. doi:10.2307/785389. JSTOR   785389.
  6. ↑ "Concubinatus Law and Legal Definition" . Retrieved 27 October 2021.
  7. ↑ See Concŭbīnus. Charlton T. Lewis and Charles Short. A Latin Dictionary on Perseus Project.
  8. 1 2 3 4 5 6 Ettedgui, Sarah (20 September 2018). "Concubinage and the Law in France" . Retrieved 27 October 2021.
  9. ↑ Karras, Ruth Mazo; Kaye, Joel; Matter, E. Ann (2013). Law and the Illicit in Medieval Europe. Philadelphia: University of Pennsylvania Press. pp. 117–130. ISBN   9780812208856.
  10. ↑ Stychin, Carl F (1 September 2001). "Civil Solidarity or Fragmented Identities? The Politics of Sexuality and Citizenship in France". Social & Legal Studies. 10 (3): 347–375. doi:10.1177/a018601. S2CID   147881086.
  11. ↑ Article 515-8 of the Civil Code defines concubinage as "a de facto union, characterized by a shared life and a character of stability and continuity, between two persons of different or same sex, who live as a couple" ("une union de fait, caractérisée par une vie commune présentant un caractère de stabilité et de continuité, entre deux personnes, de sexe différent ou de même sexe, qui vivent en couple"). See also Concubinage en France (in French).
  12. ↑ "Court of Cassation, Mixed Chamber, 68-10.276". 27 February 1970.
  13. ↑ Martin, Claude; Théry, Irène (2001). "The PACS and marriage and cohabitation in France". International Journal of Law, Policy and the Family. Oxford University Press (OUP). 14 (3): 135–158. doi:10.1093/lawfam/15.1.135.
  14. 1 2 3 4 Morley, Jeremy (30 November 2016). "Philippines' laws on adultery, concubinage, and marriage nullity" . Retrieved 27 October 2021.
  15. 1 2 3 "Repeal of RPC provisions on Adultery and Concubinage". Philippines Commission on Women. 18 March 2020. Retrieved 27 October 2021.
  16. ↑ See, for instance, Succession of Jahraus, 114 La. 456, 38 So. 417 (1905) and Succession of Lannes, 174 So. 94, 187 La. 17 (1936)
  17. ↑ Wagnon, Brittanie (Summer 2016). "From Wedding Bells to Working Women:Unmasking the Sexism Resulting from "Illicit Concubinage" in Louisiana's Jurisprudence". Louisiana Law Review. 76 (4): 1414.
  18. ↑ Lorio, Kathryn Venturatos (1996). "Roman Sources and Constitutional Mandates: The Alpha and Omega of Louisiana Laws on Concubinage and Natural Children". Louisiana Law Review. 56 (2). Retrieved 27 October 2021.
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