CONCUBINAGE. — In general, concubinage means the state of conjugal cohabitation severed from the actual bond of marriage. Hence the concrete application of this generic concept to different cases of conjugal cohabitation and the ethical-legal evaluation of concubinage depend on the varying ways of conceiving the nature and essential properties of the marital bond. The theory of free love, for example, by removing commerce and conjugal life from every moral and legal bond, abolishes the very concept of concubinage itself, making it a legitimate form of conjugal life; likewise, a divorce-allowing marriage legislation, while retaining the generic concept of concubinage, applies it differently from an indissolubility-preserving legislation. To better understand the Catholic conception and evaluation of concubinage, it is useful to compare it with the Jewish and Roman views.
I. CONCUBINAGE AMONG THE JEWS
Although the Jews ‘knew the principle of monogamous marriage, as evidenced by the Genesis account of the creation of man and woman, and although Mosaic legislation remained monogamous in spirit, polygamy nonetheless appears as a normal practice among them from Abraham down to the Babylonian captivity. Yet, in deference to the monogamous principle, only one woman is recognized as the ‘spouse’ par excellence, while all others are called ‘concubines.’ The ethical-legal evaluation of Jewish concubinage by Catholic Fathers, theologians, and exegetes is not unanimous: some wish to present it as authorized and approved, others merely as tolerated by God Himself. It remains certain that in the Old Testament polygamous concubinage is neither expressly forbidden, as adultery is, nor expressly authorized, as divorce is.II. CONCUBINAGE AMONG THE ROMANS
Since marriage among the Romans was a rigidly monogamous juridical institution, though dissoluble, conjugal cohabitation was distinguished, for Roman citizens, into legitimate (iustae nuptiae) and illegitimate. To stem the spread of illegitimate unions, the emperor Augustus, with the lex Julia de adulteriis, granted a certain legal status—at least of tolerance—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 illegitimate union and iustae nuptiae, was called concubinatus, to which the law therefore did not grant the same protection and prerogatives as marriage. The monogamous principle nonetheless remained intact, since it was not permissible to hold simultaneously a uxor and a concubina, or to have two concubinae. While Roman concubinage was on the one hand an odious thing, inasmuch as, for reasons of civil and class prestige, it reduced the conjugal union with certain persons to the status of a true marriage and the consequent legal protection, on the other hand it was a step forward toward the freedom and equality of marriage on the civil and juridical plane, which would be achieved only under the influence of Christianity.III. CONCUBINAGE IN CATHOLIC MORALS
Catholic morality has always regarded as legitimate only the conjugal union based on the marital contract, a sacrament in the baptized, one and indissoluble for all, save for the Pauline privilege and the ratum sed non consummatum marriage. Hence, just as the Church made no distinction, on the ethical-religious plane, between slave and free, so too, on the same plane, it made no distinction between iustae nuptiae and concubinatus of Roman law. The Church did provisionally accept the terms iustae nuptiae and concubinatus and their distinction on the civil plane, but gave them identical meaning and value on the religious plane. In her eyes, the concubina of Roman law was a legitimate spouse, no more and no less than the uxor. Thus it is explained that as late as the year 400 the Council of Toledo declared consistent with Christian morality both “si qui pro uxore concubinam habet” and he who has an “uxorem,” provided that both “be content with the union of one woman, whether wife or concubine.” Some centuries later Isidore of Seville, well versed in Roman law, declares: “To a Christian I say it is not lawful to have many, nor even two [women] at the same time, but only one, either a wife or, if a spouse is lacking, certainly a concubine in the place of a wife.” These two texts are cited by Gratian’s Decretum (Part 1, Dist. XXXIV, c. 4, 5). From the time when, under the impetus of the Christian idea, Roman concubinage as a distinct juridical figure disappeared along with iustae nuptiae, the term concubinage has been employed—and still is today—to designate only illegitimate conjugal cohabitation. The sole survival of Roman concubinage in the civil sphere will be the morganatic marriage (v. MORGANATIC).Concubinage may be defined as an illegitimate conjugal state, or a de facto rather than de jure marital state. Sporadic and occasional fornication with the same person does not yet constitute concubinage. Prostitutes are not concubines *per se*; rather, so-called kept women or mistresses are concubines. Concubinage is simple if it occurs between two persons free from special obligations regarding marriage; it is compound if the sexual relations between the two persons are illicit for other reasons as well (adulterous, sacrilegious, incestuous, etc.). It may also be either secret or public.
The moral malice of simple concubinage is essentially identical to that of fornication (q.v.), with the added aggravating circumstance of continuity and more or less voluntary persistence in the occasion of sin. The concubinary person is rehabilitated in the sight of God and thus becomes capable of sacramental absolution when he repents of his past sins and has a serious and effective will to break off the concubinage. A sign and effect of such a will is normally the actual breaking off of the concubinage; therefore, moralists agree that this must be required before proceeding to the absolution of the concubinary person, especially if it is a case of public concubinage, in which the actual breaking off is a necessary reparation of scandal. However, grave and special circumstances may render the actual breaking off of the concubinage morally or physically impossible. In such cases, absolution is possible provided that there is a guarantee of the resolution to avoid all sexual commerce; and the best guarantee lies in the actual execution of this resolution. Therefore, moralists require the postponement of absolution even for the secret concubinary person who is compelled to remain in his state and, on the other hand, is determined not to sin again.
It is the task of casuistry to study whether and to what extent the actual breaking off of the concubinage is morally or physically impossible. Alexander VII condemned on 24 September 1665 the following statement advanced by the casuistry of that century: “The concubinary person is not obliged to cast out the concubine if she is too useful for the pleasure of the concubinary person, commonly called a ‘gift,’ since without her he would lead a life of great hardship, and other pleasures would afflict him with great weariness, and another maidservant would be too difficult to find” (Denz-U, 1141). If the breaking off of the concubinage would mean true hunger and misery, or grave dishonor, or if the breaking off is impeded by superior forces, the occasion may be considered necessary, and absolution may proceed, provided there is no scandal, repentance, and a serious resolution not to sin.
The dying concubinary person may regulate his situation with a marriage *in extremis* if possible; in any case, repentance and the resolution (preferably manifested before witnesses, if the person is a public concubinary) to break off the concubinage if he should recover are sufficient for absolution. The removal of the concubinary partner in these cases may be impossible, especially if it is a case of secret concubinage; and if it is a case of public concubinage, the voluntary request for religious comforts in the final hour may already suffice as reparation for the scandal given. To the dying and unconscious concubinary person, absolution may always be imparted at least under condition.
Against the scourge of concubinage 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 *Codex Iuris Canonici* (canons 2357–59).
The most radical departure from Catholic moral doctrine on concubinage in our times is represented by the theory of free love, in the name of which not only divorce but also the legalization of so-called premarital relations, also called “friendship marriages” or “trial marriages,” is advocated. In other words, it is proposed to introduce, alongside true marriage and as a preparation for it, a new figure of conjugal union founded exclusively on the free and spontaneous “friendly” consent of the two parties; in other words, the legalization of concubinage. Pius XI stigmatized this theory and practice as “nefarious aberrations” in the encyclical *Casti connubii* of 31 December 1930 (cf. *AAS*, 22 [1930], pp. 558–59).
IV. CONCUBINAGE IN CANON AND ITALIAN CIVIL LAW
Although some passages in canonical sources (cf., for example, c. 2, 3, D. XXXIV; c. 5, C. XXXII, q. 2) may lend themselves to an equivocal interpretation, it is certain that the Church condemned concubinage from the earliest times as a clear violation of the sixth precept of the Decalogue and as a grave offense against the sacrament of Matrimony. It suffices to recall what St. Ambrose (*De patriarchis*), St. Jerome (*Contra Iovinianum*), and St. Augustine (*De bono coniugali*) wrote on the subject, as well as the doctrine expounded by St. Thomas in the *Summa Theologiae* (Supplementum), q. LXV, arts. 3–5.
The concubinage of clerics was soon regarded as a true and proper crime and consequently punished, depending on the case, with deprivation of office and benefice (c. 16, D. LXXXI), with deposition (c. 20, D. LXXXI), and with excommunication (c. 3, X, *de cohabitatione clericorum et mulierum*, III, 2; c. 55, X, *de sententia excommunicationis*, V, 39). Not so the concubinage of the laity; although the Council of Basel (sess. XX, 1) openly deplored it, it was first prohibited under threat of canonical penalties by the constitution *Supernae dispositionis* of Leo X (1514). Finally, the Council of Trent, regulating the entire matter, decreed that laity, whether single or married, guilty of keeping a concubine and deaf to repeated warnings from the Ordinary, should be struck by a sentence of excommunication (sess. XXIV, *de ref.*, c. 8); and it laid down particular norms for proceedings against clerics who should fall into the same offense or who, in any case, should maintain relations, in the home or elsewhere, with women *de quibus possit haberi suspicio* (sess. XXV, *de ref.*, c. 14; cf. also *CELEBACY*).
1. **Concubinage as an ecclesiastical crime.** — The current *Codex Iuris Canonici* treats concubinage among the crimes against good morals and, in conformity with tradition, considers it differently according to the quality of the guilty party.
A layperson who habitually maintains sinful relations with a woman to whom he is not united in marriage is guilty of concubinage and, as such, is subject to the penalty of exclusion from ecclesiastical acts until he gives signs of sincere repentance (can. 2357 § 2). It is not necessary, for the crime to exist, that the couple live together *more uxorio*; nor does it matter whether the concubine is in the same house as the guilty party or elsewhere. An indispensable condition for punishability, however, is that the act be public in the sense of can. 2197 n. 1, i.e., that it be committed under circumstances likely to cause serious scandal among the faithful.
The consummating moment occurs as soon as the sexual relationship between man and woman has assumed that character of habituality and continuity which is required by the very notion of concubinage. The psychological element consists in dolus, that is, in the awareness and will to maintain an illicit relationship contrary to the law. Since this is a continuing offence (whose consummation is prolonged in time until the unlawful state created by the agent ceases) and a bilateral one (which by its nature requires the concurrence of two persons), it follows that: 1) the time-limit for prescription runs from the moment when the illicit relationship is in fact terminated (cf. can. 1705 § 2); 2) the concubine is liable to the same penalties as the man (cf. can. 2200 § 2, 2231). Nothing prevents, finally, that when the guilty party is married, the offence of concubinage may materially concur with that of adultery (q.v.).
The juridical structure of concubinage remains unaltered if the active subject is a minor cleric: the only difference being that in addition to exclusion from lawful ecclesiastical acts, other penalties proportionate to the gravity of the fault and extending even to reduction to the lay state may be inflicted at the discretion of the Ordinary (can. 2358).
The discipline of the Code with regard to clerics in major orders is notably different. Can. 133, while imposing on them the duty not to cohabit and not to keep relations with women who by reason of their youth or other circumstances might give rise to suspicion (q.V. COHABITATION), prescribes in § 4: “Contumaces praesumuntur concubinarii.” By virtue of this presumption (which admits of no contrary proof), the Ordinary of a cleric in major orders, whether secular or religious, is punishable for concubinage not only when, through his action, all the conditions required by law for the existence of concubinage in the proper sense have been fulfilled, but also when, despite the warnings addressed to him by the Ordinary, he persists in keeping near him or in frequenting a merely suspect woman.
Concubinage by priests may therefore be divided into two distinct criminal figures: the first (real concubinage), identical in all respects to that examined above; the second (presumed concubinage), consisting in the fact of maintaining, in defiance of superior orders, a compromising conduct. Presumed concubinage, unlike real concubinage, is independent both of the publicity of the fact and of the actual existence of sexual relations between the accomplices, and in substance consists in the violation of a particular obligation inherent in the status of priest.
Against clerics in major orders guilty of concubinage, can. 2359 § 1 provides for suspension a divinis and deprivation of the fruits of office, benefice, and dignity. These penalties may be inflicted only after a special administrative procedure, governed by cann. 2176–81.
This procedure is initiated by means of an invitation 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 hypotheses may arise: a) that the cleric complies with the precept; b) that the cleric does not obey and offers no defence; c) that the cleric does not obey but presents his own justification.
In the first case, the presumption laid down by can. 133 § 4 loses its force, and no punishment may be inflicted. In the second case, the Ordinary, having ascertained that the cleric had time and opportunity to obey, suspends him a divinis. Moreover, if the cleric is a parish priest, he is deprived of his parish; and if he is a beneficed cleric without cure of souls, after two months have elapsed in vain, he is deprived of half the fruits of the benefice, and after a further three months, also of the remaining fruits, and after yet 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 to be unfounded, he promptly communicates this to the interested party and by formal precept fixes a short term for obedience (can. 2179). The consequences of any disobedience to this new injunction vary according as the offender is an amovible parish priest or an inamovible parish priest or other inamovible beneficiary: the amovible parish priest is forthwith struck with suspension a divinis and deprived of his parish; whereas the inamovible parish priest or other inamovible beneficiary, who avails himself of the expressly recognized faculty of presenting further defensive submissions, cannot be punished under cann. 2177 and 2359 § 1 except after a further and definitive precept of the Ordinary (can. 2180 and 2181).