The Concept Of Concubinatus In Roman Law

Introduction

Concubinatus can be defined by Jacobs as the ‘durable monogamous cohabitation between a man and a woman… which accrued to the status of unmarried cohabitation’. Concubinage is now recognized and referred to as ‘life partnership’ or ‘domestic partnership’ which further compares modern cohabitation to the Roman concubinatus. 

The Roman concubinatus

The Roman concept Concubinatus has been defined differently over years at all Roman levels. It is important to understand this concept by discussing certain aspects experienced in all periods of Roman law, starting with the concept of matrimonium in early Roman law (753 BC – 250 BC) and looking at the later Justinian approach.

The early Roman community was influenced by three aspects, namely customs; morals and religious rules. Familia played an important role within an early Roman society. The political important of familia resulted in marriage matters being private matters that were regulated by the three influential aspects. The only recognized relationship at this time was the marriage between a man and a woman. Concubinage, if it occurred, was the exception to the rule and had no legal consequences.

During pre-classical law, the Roman community became a more flexible society. Towards the late republican period, concubinage became common and occurred more frequently. Amongst the upper class, it became more socially acceptable but remained a factual relationship which was not legally recognized.

The beginning of the Principate period, concubinage was still widespread and common. Certain marital affairs were regulated and lex lulia de adulteris to restore moral values by repressing extra-marital relations that were regarded as unacceptable. Adulterium and steprum were seen as crimes but gave very vague descriptions for punishments and merely provided prohibition for such acts/crimes. To be classified as a concubinae, certain classes of women were exempted such as freedwomen, prostitues and freeborn women of a low status. Children born of concubinage were born illegitimate. Some successors of Augustus took some concubines and even promoted concubinage, therefore becoming a socially recognized phenomenon at all levels of Roman society. Concubinage thus became a normal alternative to marriage.

Concubinage was tolerated and allowed but marriage was always promoted. There were no criminal-law effects resulting from concubinage as it remained purely factual and lacked formal legal recognition with no legal consequences. The children that were born illegitimate belonged to the mother and due to intestate succession, only inherited from the mother’s side. Towards the end of the classical period, it became difficult to distinguish between concubinage and marriage.

Post-classical law introduced the view of the Church and the Christian emperors. Christianity viewed marriage as a sacrament and viewed any other act, such as concubinage, as sinful. Concubinatus was therefore not tolerated. Christianity banned Christians on marrying non-Christians and this resulted in Concubinatus. Later, the Christianity community recognized some concubinage relationships, and allowed concubinage between a Christian man of low class and a woman of high class.

Justinian (AD 527 – AD 565) equalized concubinage with marriage by recognizing it as a ‘lesser’, kind of inferior marital status. There were certain requirements for Concubinatus that were entitled by law to conclude valid marriage. These requirements include lasting cohabitation relationship that remains monogamous, the women were freeborn, for conclusion of a valid marriage the age of 12 was required, no dowry and no adultery. Due to these requirements, illegitimate children could become legitimate as a result of the parent’s subsequent marriage and some were allowed to inherit.

Judgment

Cohabitation can be defined as ‘the relationship of a man and a woman who live together ostensibly as man and wife, without having gone through a legal ceremony of marriage’. Cohabitation is common and social accepted but still has no legal recognition. 

The question of whether a relationship of cohabitation should carry any legal consequences relies in the Constitution and the binding legal obligations between parties involved. Many people living in permanent life partnerships, such as Leratho and Andires, have the view of the institution of marriage to be outdated. Section 9 of our constitution provides that ‘the state may not unfairly discriminate directly or indirectly against anyone on one or more grounds including… marital status’.

In the Jacobs' case, the deceased was the sole income earner and was responsible for the maintenance of the cohabitant partner and children. The plaintiff, who was in a relationship with the deceased but was not legally binded by valid marriage, was granted the claim. 

Therefore, the courts have the duty to develop the common law and follow provisions stated in section 39(2) of the Constitution with states that the common law must be developed in order to promote the spirit, object, and purport of the Bill of Rights. Thus, the modern cohabitation principle as mentioned in early Roman years must be developed to extend the current Concubinatus position. 

Bibliography

• Jacobs A ‘The ghost of the Roman concubinatus’ 2004 (10) Fundamina (59-82).
• Jacobs v Road Accident Fund 2019 (2) SA 275 (GP).
• Volks NO v Robinson and Others 2005 (5) BCLR 446 (CC).
• Constitution of the Republic of South Africa.