The following is a guest post by Sarah Ettedgui, a foreign law intern who worked with foreign law specialist Nicolas Boring at the Global Legal Research Directorate, Law Library of Congress during the summer.
If there is one area of the law in which moral and religious ideologies have exercised a profound influence, it is that of relationships between the sexes. Over the centuries, the legal framework surrounding the union of two persons has greatly varied; influenced by the religious and moral standards of the time, which powerfully reflected a community’s social norms.
In ancient Rome, the term concubinatus, meaning concubinage (or “cohabitating union”), was used to refer to a monogamous union and a permanent cohabitation recognized by law between a man and a woman who were not legally married. This allowed a man to enter into an informal but recognized relationship with a woman who could not become his wife, often because of her lower social status. However, the Romans did not see concubinage unfavorably and mourners often inscribed the title of concubina on tombstones.
Christianity brought a profound change to this dynamic. By asserting the spiritual equality of men and women and by affirming the sacramental aspect of Christian marriage, canon law consecrated the concept of the “monogamous family” into an impermeable religious foundation. Besides marriage, there could only be illegitimate and immoral relationships, deprived of any legal obligation, right or effect.
This brings us to the purpose of the present article, which aims at understanding the legal status of “concubinage” or cohabitation in France, described by François de Singly, Sociology Professor at the University of Paris-Descartes, as a “legitimate choice, but with consequences.”
Legislative History and the Normalization of Concubinage
During the drafting of the French Civil Code, Napoleon stated: “As concubines are not interested in the law, the law shall not have to take interest in them.”, meaning the law did not address concubines or their status. The French courts closely followed this position until the late sixties.
After the social movements of 1968, serious changes started to become noticeable in the way couples constituted partnerships in France. New generations wanted to delay entering into a marriage, and the number of marriages steadily declined.
These societal changes led French courts and lawmakers to extend the rights of unmarried cohabiting couples in order to reflect this growing reality. Hence, in 1970, a landmark decision by the Cour de Cassation (the French equivalent of the Supreme Court for civil matters) 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. Until this decision, cohabitants were simply not considered as having a legitimate interest protected by law. This break in jurisprudence was shortly followed by various legislative developments conferring rights to cohabitants in different areas including parentage (referred to as “filiation” in French law), welfare, taxation, leases, and even penal law (decriminalization of adultery in 1975).
However, same-sex couples continued to face difficulties in having their relationships recognized as falling within the category of concubinage, since French courts maintained that concubinage is a reflection of the “traditional notion of marriage, namely the cohabitation of a man and a woman.” In 1999, however, concubinage was eventually 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.”
Rights and Obligations of Cohabitants
Cohabitants are usually considered as independent persons and not as a couple. Therefore, they do not owe each other mutual and material aid or fidelity as in the case of marriage. French law makes no provision in case of their separation or death. In case of death, the partner has no right to make decisions about the funeral and may not receive any state pension. There are also no inheritance rights, nor can cohabitants adopt a child together.
French law also does not consider cohabitants as a couple for the purposes of annual income tax, since only married couples or registered partnerships (under a “civil pact of solidarity” known as PACS) may declare their income jointly. That said, concubinage might lead to the loss or reduction of some benefits, including family support and income benefits, which are paid to the couple and not the partners on an individual basis.
In light of all this, French courts have developed jurisprudence based on the notions of “société de fait” [de facto partnership] or “enrichissement sans cause” [unjust enrichment], in cases where separation caused damages, to compensate a partner who suffered a loss.
In regards to parenthood, the legal situation of cohabitants is different, as there seems to be a complete assimilation of rights and duties of parents towards their children, independently of the legal status of the couple. In 1972, a reform on filiation was introduced to establish equality between legitimate children and children born out of wedlock. Consequently, the principle of equality between legitimate and non-legitimate children was guaranteed by article 334 of the French Civil Code, which stated that a “child born out of wedlock shall have the same rights as a legitimate child in his or her relationship with his or her parents.”
As perceptions around the importance of marriage change and the stigma surrounding concubinage declines, couples increasingly choose to forego marriage. This is true even if cohabitants seem aware of the lack of legal protection associated with their relationship. Indeed, private solutions have emerged which enable partners to make provisions of how they want to handle their assets and how they plan to deal with their prospective property if the relationship eventually breaks down. As this trend increases, courts and the legislature still struggle with protecting partners’ individual rights while simultaneously allowing people the freedom to undertake the obligations normally associated with marriage.
Authors note that there still seems to be a strong traditional marital preference in France, according to which unmarried partners should not benefit from the state in the same way as people who have formally pledged their mutual commitment. Because of the statutory differences between married and cohabiting couples as discussed above, some argue that a reform and harmonization of the law remains necessary.
This blog post provides a brief overview of the legal status of concubinage in France. The collection of the Law Library of Congress includes a number of titles that cover this topic in depth, including:
- Alain Devers, Le concubinage en droit international privé [Concubinage in International Private Law] (2004).
- Des concubinages : droit interne, droit international, droit comparé [Of Concubinage: National Law, International Law, Comparative Law] (2002).
- Les Concubinages : approche socio-juridique [Concubinage: A Social and Legal Approach] (Jacqueline Rubellin-Devichi ed., 1986).
- Martine Fell, Le guide pratique du concubinage [Practical Guide to Concubinage] (1985).
The notion of concubinage is also discussed in most treatises on French family law, such as
- Droit de la famille [Family Law] (Jacqueline Rubellin-Devichi ed., 2001).