Concubinage (law)

Roman legal history

Under Roman Law, where monogamy was expected, concubinage was an institution that did not translate into rights to property, inheritance or social rank, 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. The title concubina was often inscribed on tombstones by mourners of the deceased.

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.

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, where it is derived from the Napoleonic Code. 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."

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, 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." 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.

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". 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.

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). 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. It is defined under Article 333 of the RPC.

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. It is defined under Article 334 of the RPC.

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.

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.

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".