CONCUBINAGE: BACKGROUND, CHARACTERISTICS, LEGAL EFFECTS - ARTE - 2025

The concubinage is a relationship between a man and a woman who intend to stay together for a long time, but it is a marriage. They are couples that cohabit although they dispense with the formalities and also the benefits of conventional marriage.

When defining concubinage, reference is made to a duration in time that implies that legal consequences are generated in different areas of the subjects' lives. These are aspects related to the patrimony, parental and personal relationships.

Concubinage has been a common and recognized practice in many cultures throughout history, although normally concubines did not have the legal protection of married women. In religions such as Islam, concubinage was admitted and harems existed in the very upper class.

The concubines who lived in these did not have many private rights, but their descendants did have some property rights. Currently it is very common for couples to cohabit without having any interest in formalizing the union through civil or religious marriage.

The reason that many people have for preferring this option instead of the previous ones is based on the rejection of commitment and the desire to exempt themselves from obligations and responsibilities that are included within the conventional forms of union in the field of couple relationships..

Background (Roman law)

The concubinage in ancient Rome has very particular elements, as well as interesting. One of these elements is the requirement of monogamy; that is to say, in principle in ancient Rome you could not be married and have a concubine at the same time. Nor could you have more than one concubine at a time.

Logically this was the theory, since this requirement of monogamy was not always fulfilled. If there was polygamy, the wife could sue her husband if he spoke to her ex-concubine again.

Jurists of the late second and early third centuries claimed that a man could not accuse his concubine of adultery in the same way that a husband could.

Interestingly, he could accuse her as a third party (that is, not as harmed), but only if she had not lost the title of matron by becoming his concubine.

If she had renounced that state, it is assumed that adultery could not have been committed, since she had no honor to lose.

Normally concubines had a lower status (although not always) and this meant that they were economically and socially dependent on their employer, at least partially. This does not imply that all married couples were monogamous, simply that they were supposed to be.

Roman law

Roman law contemplates and regulates concubinage, although you can only study what those who wrote the law thought was the ideal and the specific issues they were especially concerned about.

In this law, monogamy appears as the ideal, but it did not work in practice as would be deduced from a literal interpretation of the law, especially in situations involving a concubine.

Features

The concubinage has the following characteristics:

Cohabitation

It is the essential characteristic of concubinage. When the parties do not share a domicile, we cannot consider that there is a common-law relationship.

Living together means that the couple makes up a community and, as such, situations arise that require intervention or legal regulation.

Singularity

It assumes that all the factors that make up the concubinage have to be present only between the two subjects. However, the singularity does not disappear because some elements appear with other subjects that are not part of the concubinage.

Permanence

There has to be a temporary factor; In other words, it cannot be an occasional or short-term relationship. This characteristic is so important that if the couple's relationship does not have a certain duration in time, it is not considered concubinage.

As in marriage, there can be periods of separation and short breaks without affecting the element of permanence characteristic of the concubinage.

Notoriety

The relationship between the subjects of the concubinage must be public, not secret. Failure to do so may affect the legal consequences of the union.

Legal effects

When there is a union between two people that lasts over time, it is inevitable that legal effects arise in different areas of life in society. However, cohabitation alone does not have legal consequences.

Properties

Current legislation does not regulate or contemplate that this type of relationship in particular produces legal effects. Despite this, when a couple lives together for years it is very likely that they will acquire properties with resources from both parties.

Therefore, to save later problems and possible lawsuits, it is very convenient to create some type of partnership between the couple that regulates the assets acquired in a type of joint ownership protected by law.

Filiation

With regard to children resulting from a common-law relationship or subsequent to it, they are subject to the regulations of voluntary recognition of paternity.

In the event that this recognition is not carried out, a legal action must be initiated through which the concubinage of the mother with the possible father at the time of pregnancy can be verified. In other words, the certainty of the couple has to be established to determine possible paternity.

Logically, other evidence mechanisms are also used in addition to the presumption of paternity derived from the common-law relationship with the alleged father, such as DNA tests, which are very reliable in terms of their results.

Alimony

A concubine relationship concluded can lead to the obligation to pay alimony by one of the parties, either the father or the mother.

They are obligations that have their origin in some way in the cohabitation, although they are not exactly contemplated.

Positive aspects

-It can be important and interesting to live as a marriage before the legal marriage (religious or civil), as a way to make sure that the chosen partner is the person with whom you want to spend the rest of your life.

- Statistically, the number of divorces is increasing; in fact, four out of ten marriages end in breakdown. Perhaps options such as common law can reduce the divorce rate.

- The concubinage supposes a greater range of freedom.

Negative aspects

- There may be less commitment on the part of the couple compared to marriage.

- It can mean less stability for the couple.

References

1. Emily Kittell-Queller. (2013) Roman concubinage and monogamy. Emilykq.weebly.com
2. Merriam Webster. Legal definition of concubinage. Merriam.webster.com
3. Get revising. Positive and negative aspects of concubinage. Getrevising.co.uk
4. My lawyers. (2016) What is the concubinage ?. Misabogados.com.mx
5. Matos Mateo & Asociados Abogados. About the concubinage. matosmateo.com