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89 S. African L.J. 321 (1972)
The Law of Concubinage

handle is hein.journals/soaf89 and id is 383 raw text is: THE LAW OF CONCUBINAGE* 1 At the outset it ought to be said that the title of this article is some- what misleading. There is no 'law of concubinage' in the same sense as there is a 'law of husband and wife', for while marriage is a recognized legal relationship, concubinage is not. What will be dealt with in this article is the application of general rules of law to the factual situation known as concubinage. No doubt because South Africans are a moral people, there are not many cases on concubinage in our law. 2 Concubinage is defined in the Oxford English Dictionary as the 'cohabiting of a man and a woman who are not legally married'. In this, its widest sense, concubinage embraces two different forms of relationship: that of a man and woman who, with some degree of stability and permanence, live together as husband and wife without ever having gone through a marriage ceremony; and that of a man and woman who live together as husband and wife after having gone through a marriage ceremony, but whose marriage, for one reason or other, is invalid, for example, because there has been a formal defect in the ceremony, or because one or both of the parties are already married, or because they are related to each other within the prohibited degrees. The first-mentioned relationship is concubinage in its ordinary or popular sense. Concubinage is not a privilege of the unmarried. A married man may live apart from his wife, with a mistress, or he may divide his time equitably between his wife and his mistress, living part of the week with the one, part with the other, or he may live together with both in a menage a trois. The term 'common-law marriage', too, is ambiguous. It may denote the informal consent marriage which formed part of the 'common' law of Western Europe until the Church Council of Trent replaced it in 1563 with the ceremonial marriage, and which continues to exist, side by side with the ceremonial marriage, in a number of American jurisdictions, for instance, California and Texas. Its legal requirements vary from State to State, but most of the American jurisdictions recognizing the 'common-law marriage' require consent to enter into * This article is based on a report prepared by the author for the Quebec Bureau de Revision du Code Civil and is published with the consent of the President of the Bureau.