CONCUBINAGE. – In general, concubinage means the state of conjugal cohabitation detached from the genuine matrimonial bond. Consequently, the concrete application of this generic concept to the various cases of conjugal cohabitation, and the ethical-legal evaluation of concubinage, depend on the different way of conceiving the nature and essential properties of the matrimonial bond. The theory of free love, for example, by removing sexual relations and conjugal life from every moral and legal bond, suppresses the very generic concept of concubinage, making it a legitimate form of conjugal life; likewise, legislation permitting divorce in marriage, while maintaining the generic concept of concubinage, applies it differently from legislation upholding indissolubility. To better understand the Catholic conception and evaluation of concubinage, it is useful to compare it with the Jewish and Roman conceptions.
I. CONCUBINAGE—AMONG THE HEBREWS
Although the Hebrews “knew the principle of monogamous marriage, as is evident from the Genesis account of the creation of man and woman, and although Mosaic legislation also remained monogamous in spirit, nevertheless, among them polygamy appears as something normal, from Abraham until the Babylonian captivity. Yet, in deference to the monogamous principle, only one woman is recognized as the “wife” par excellence, while all the others are called “concubines.” Catholic Fathers, theologians, and exegetes are not unanimous in their ethical and juridical assessment of Hebrew concubinage: some hold that it was authorized and approved, while others maintain that it was merely tolerated by God himself. The fact remains that in the Old Testament polygamous concubinage is neither expressly prohibited, as adultery is, nor expressly authorized, as divorce is.II. CONCUBINAGE AMONG THE ROMANS
Since marriage among the Romans was a strictly monogamous, though dissoluble, legal institution, conjugal cohabitation was divided, for Roman citizens, into legitimate (iustae nuptiae) and illegitimate. To curb the spread of illegitimate unions, the emperor Augustus, through the lex Iulia de adulteris, granted a certain legality, at least that of toleration, to the conjugal union of Roman citizens with certain persons of inferior status (freedwomen, slaves, procuresses, actresses, etc.), who by law lacked the capacity to contract iustae nuptiae. This kind of conjugal union, a true compromise between an illegitimate union and iustae nuptiae, was called concubinatus; consequently, the law did not afford it the same protection and prerogatives as marriage. The monogamous principle nevertheless remained intact, since it was not lawful to keep a uxor and a concubina simultaneously, or to have two concubines. If Roman c. was, on the one hand, objectionable, since, for reasons of civil and class prestige, it denied the character of a genuine marriage and the consequent legal protection to conjugal union with certain persons, on the other hand it represented a step forward toward freedom and equality in marriage on the civil and legal plane—an equality that, however, would be achieved only under the influence of Christianity.III. C. IN CATHOLIC MORALITY. — Catholic morality has always considered legitimate only the conjugal union based on the nuptial contract, the Sacrament among the baptized, one and indissoluble for all, except for the Pauline privilege and the matrimonium ratum non consummatum. Thus, just as the Church made no distinction, on the ethical-religious plane, between slave and free person, so, on that same plane, it made no distinction between iustae nuptiae and concubinatus under Roman law. The Church did provisionally accept the terms iustae nuptiae and concubinatus and their distinction on the civil plane, but assigned them an identical meaning and value on the religious plane. In her eyes, the concubine under Roman law was a legitimate wife, no more and no less than the uxor. This explains why, still in the year 400, the Council of Toledo declared to be in conformity with Christian morality both « is qui pro uxore concubinam habet » and the man who has an « uxorem », provided that both « unius mulieris, aut uxoris aut concubinae, sit coniunctione contentus ». Some centuries later Isidore of Seville, well versed in Roman law, declared: « Christiano non dicam plurimas, sed nec duas (mulieres) simul habere licitum est, nisi unam tantum, aut uxorem, aut certe loco uxoris, si coniux deest, concubinam ». These two texts are reported in the Decree of Gratian (part 1, dist. XXXIV, ch. 4, 5). From the time when, under the impetus of the Christian idea, Roman c. began to disappear as a juridical figure distinct from iustae nuptiae, the term c. came to be used, and continues to be used to this day, solely to designate illegitimate conjugal cohabitation. The sole survival of Roman c. in the civil morganatic marriage (v.).
C. may be defined as: an illegitimate conjugal state, or also, a de facto and not a de jure marital state. Sporadic and occasional fornication with the same person does not yet constitute c.
Prostitutes are not in themselves concubines; the so-called kept women or mistresses are. C. is simple when it occurs between two persons free from special obligations with regard to marriage; it is compounded when the sexual relations between the two persons are already illicit for other reasons (adulterous, sacrilegious, incestuous c., etc.). It may also be clandestine or public. The moral malice of simple c. is substantially identical with that of fornication (v. FORNICAZIONE), with the addition of an aggravating circumstance, namely, continuity and the more or less voluntary persistence in the occasion of sin. The concubinary is restored to the favor of God and therefore becomes capable of sacramental absolution when he repents of his past offenses and has the serious and effective intention of ending the concubinary relationship. The sign and effect of this intention is ordinarily the actual termination of the concubinary relationship, and therefore moralists agree in requiring it before proceeding to the absolution of the concubinary, especially when it concerns public c., in which case the actual termination is a necessary reparation for scandal. Nevertheless, grave and special circumstances may render the actual termination of concubinary cohabitation morally or physically impossible. In these cases absolution is possible, provided that the intention to avoid all sexual relations is assured; and the best assurance lies in the actual execution of this intention. Therefore moralists require the postponement of absolution even for the clandestine concubinary who is compelled to remain in his state but, on the other hand, is resolved to sin no further. It is the task of casuistry to study whether and to what extent the actual termination of concubinary cohabitation is morally or physically impossible. Alexander VII condemned on 24 September 1665 the following assertion, advanced by the casuistry of that century: « Non est obbligandus concubinarius ad eiciendam concubinam, si haec nimis utilis esset ad oblectamentum concubinarii, vulgo regalo, dum deficiente illa, nimis aegre ageret vitam et aliae epulae taedio magno concubinarum afficerent et alia famula nimis difficile inveniretur » (Denz-U, 1141). If the termination of concubinary cohabitation means genuine hunger and misery, or serious dishonor, or if the termination is prevented by superior forces, the occasion may be considered necessary and absolution may be granted, provided that there is no scandal, that there is repentance, and that there is a serious intention not to sin. The dying concubinary may regularize his situation through an in extremis marriage, if possible; in any case, repentance and the intention (if possible, expressed before witnesses, if he is a public concubinary) to end the c. should he regain his health are sufficient for absolution. In these cases the removal of the concubinary partner may be impossible, especially if the c. is clandestine; and if it is public, the voluntary request for religious assistance in the final hour may already constitute reparation for the scandal given. It is always lawful to grant absolution, at least conditionally, to the dying concubinary who is unconscious.
Against the scourge of c. and its various forms, the Church has always opposed severe juridical measures, varying according to the times and customs. Those currently in force are found in the CIC (cann. 2357–59).
The most radical attack in our times on Catholic moral doctrine concerning c. is represented by the theory of free love, in whose name not only divorce is demanded, but also the legalization of the so-called premarital relations, likewise called « friendship marriage » or « trial marriage ». In short, it is proposed to introduce, alongside marriage properly so called and as a preparation for it, a new form of conjugal union founded exclusively on the free and spontaneous « friendly » consent of the two parties; in other words, what is sought is the legalization of c. Pius XI stigmatized this theory and practice as « aberrazioni nefande » in the encyclical Casti connubii of 31 December 1930 (cf. AAS, 22 [1930], pp. 558–59).
BIBLI: A complete treatise, although an old one, is that of B. Choucony, Tractatus de publicis concubinaris, Leida 1930. On Jewish c.: P. Renard, Concubine, in DB, II, cols. 906–907; L. Godfrey, Mariage dans l'Écriture, ibid., IX, cols. 2052–53; J. Leclercq, Legens de droit naturel, III: La famille, 2nd ed., Lovanio 1944, pp. 78–84. On Roman c.: H. Leclercq, s. V. in DACL, III, cols. 2494–2500; E. Voterra, s. V. in Exc. Ital., XI (1931), pp. 92–93; E. Albertario, Honor matrimonii e affectio maritalis, in Studi di diritto romano, I, Milano 1933, pp. 209–10; E. Jombart, s. V. in DDC, III, cols. 1513–14. On the moral evaluation of c.: B. Dolhagasy, s. V. in DThC, III, cols. 796–803; H. Leclercq, op. cit., pp. 31–110, 174–224; J. Ter Haar, Casus conscientiae, 2nd ed., Torino 1939, pp. 140–46. Gaetano Corti
IV. C. IN CANON LAW AND ITALIAN CIVIL LAW. — Although certain passages of the canonical sources (v. , for example, c. 2, 3, D. XXXIV; c. 5, C. XXXII, q. 2) may lend themselves to an equivocal interpretation, it is certain that from the earliest times the Church condemned c. as an evident violation of the sixth commandment of the Decalogue and as a grave offense against the sacrament of Marriage: it suffices to recall what was written on the subject by s. Ambrose (De patriarchis), s. Jerome (Contra Iovinianum), and s. Augustine (De bono coniugali), as well as the doctrine expounded by s. Thomas in the Sum. Theol. (Suppl., q. LXV, arts. 3-5).
The c. of clerics was soon regarded as a genuine crime and was consequently punished, depending on the case, by deprivation of office and benefice (c. 16, D. LXXXI), deposition (c. 20, D. LXXXI), and excommunication (c. 3, X, de cohabitatione clericarum et mulierum, III, 2; c. 55, X, de sententia ex-communicationis, V, 39). The same was not true of the c. of laymen, which, despite an explicit condemnation by the Council of Basel (sess. XX, 1), was prohibited for the first time under threat of canonical penalties by Leo X’s constitution Supernae dispositionis (1514). Finally, the Council of Trent, regulating the entire matter, decreed that laymen, tem soluti quam uxorati, who were guilty of keeping a concubine and deaf to repeated admonitions from the Ordinary, should be subject to a sentence of excommunication (sess. XXIV, de ref., c. 8); and it established particular rules for proceedings against clerics who incurred the same offense or who, in any event, maintained relations, in or outside the home, with women de quibus possit haberi suspicio (sess. XXV, de ref., c. 14; V. CELIBATO).
1. C. as an ecclesiastical crime. — The current CIC includes c. among crimes against morals and, following tradition, treats it differently according to the status of the active subject.
A layman is guilty of c. — and, as such, is subject to the penalty of exclusion from legitimate ecclesiastical acts until he has given signs of sincere repentance (can. 2357 § 2) — if he habitually maintains sinful relations with a woman to whom he is not married. For the crime to exist, it is not necessary that the couple live together more uxorio; nor does it matter in the least whether the concubine lives in the offender’s house or elsewhere. An indispensable condition for punishment is, however, that the act be public within the meaning of can. 2197 n. 1, that is, that it be
committed in circumstances such as to create a serious danger of scandal among the faithful.
The crime is consummated as soon as the sexual relationship between the man and the woman has acquired the habitual and continuous character required by the very notion of c. The psychological element consists in intent, that is, in the awareness and will to maintain an illicit relationship contrary to the law. Since this is a continuing offense (whose consummation extends over time until the unlawful state created by the agent comes to an end) and a bilateral offense (which by its nature requires the participation of two persons), it follows: 1) that the period for prescription runs from the moment when the illicit relationship is effectively terminated (cf. can. 1705 § 2); 2) that the concubine is subject to the same penalties established for the man (cf. cann. 2209 § 2, 2231). Finally, there is nothing to prevent the crime of c., when the offender is married, from materially coinciding with that of adultery (v.).
The legal structure of c. remains unchanged when the active subject is a minor cleric, with the sole difference that, in addition to exclusion from legitimate ecclesiastical acts, the latter may, at the discretion of the Ordinary, be subjected to other penalties proportionate to the gravity of the offense and extending even to reduction to the lay state (can. 2358).
The code’s regulation is considerably different with regard to clerics ordained in sacris. Canon 133, while requiring them not to cohabit or maintain relations with women who, because of their youth or for other reasons, may give rise to suspicion (v. COABITAZIONE), expressly prescribes in § 4: Contumaces praesumuntur concubinaris. By virtue of this presumption (which does not admit contrary proof), a cleric ordained in sacris, whether secular or religious, is punishable on the grounds of c. not only when, as a result of his conduct, all the conditions required by law for the existence of c. properly so called have been fulfilled, but also when, despite the invitations addressed to him by the Ordinary, he persists in keeping near him or frequenting a merely suspect woman.
The c. of priests may therefore be divided into two distinct criminal forms: the first (actual c.), entirely similar to that examined above; the second (presumed c.), consisting in maintaining compromising conduct in defiance of superior orders. Presumed c., unlike actual c., presupposes neither the publicity of the act nor the actual existence of sexual relations between the accomplices; essentially, it consists in the violation of a particular obligation inherent in the status of a priest.
Against clerics in sacris guilty of c., can. 2359 § 1 provides for suspension a divinis and deprivation of the fruits of office, benefice, and dignity. These penalties may be imposed only following a special administrative procedure regulated by cann. 2176-81.
This procedure is initiated by an admonition from the Ordinary, addressed to the cleric in the form of a penal precept, to abandon the woman in question or to refrain from frequenting her (can. 2176). Thereafter, three possibilities may arise: a) the cleric complies with the precept; b) the cleric does not obey and does not clear himself; c) the cleric does not obey but presents his justifications.
In the first case, the presumption established by can. 133 n. 4 loses its effectiveness, and no punishment of any kind may be imposed. In the second case, once the Ordinary has ascertained that the cleric has had the time and means to obey, he suspends him a divinis. Moreover, if he is a parish priest, he deprives him of the parish; and if he is a beneficiary without the care of souls, after two months have elapsed without result, he deprives him of half the fruits of the benefice, subjecting him, after a further three months, also to deprivation of the remaining fruits and, after another three months, of the benefice itself
(can. 2177). In the third case, if the Ordinary, having heard the opinion of two synodal examiners (can. 2178), considers the justifications offered unfounded, he promptly communicates this to the person concerned and, by a formal precept, sets him a short period in which to obey (can. 2179). The consequences of any disobedience to this new injunction differ according to whether the person is a removable parish priest or an irremovable parish priest or other irremovable beneficiary: the removable parish priest is immediately subjected to suspension a divinis and deprived of the parish; whereas the irremovable parish priest or other beneficiary who exercises the faculty expressly recognized to him of presenting further defenses may not be punished under cann. 2177 and 2359 § 1 except following a further and definitive precept of the Ordinary (cann. 2180 and 2181).
2. C. in civil legislation. — In Italian law, the notion of c. is much narrower than in canon law, referring exclusively to the husband’s adulterous relationship. According to art. 560 of the Italian Penal Code, a husband who keeps a concubine in the marital home or notoriously elsewhere is punished, upon complaint by his wife, with imprisonment for up to two years. The concubine is subject to the same penalty.