According to Article 2 of the Judicial Interpretation of the Marriage Law of the Supreme People's Court, cohabitation of a spouse with another person means that the spouse and the heterosexual couple live together continuously and steadily without the name of husband and wife.
2. Characteristics of cohabitation between spouses and others
The Supreme People's Court's Interpretation (1) on Several Questions Concerning the Application of the Marriage Law of the People's Republic of China (hereinafter referred to as the Interpretation) stipulates as follows: "The cohabitation of a spouse with another person stipulated in Articles 3, 32 and 46 of the Marriage Law refers to the continuous and stable co-habitation of a spouse with a heterosexual person outside marriage, not in the name of a husband and wife." According to the provisions of this article, we can conclude the legal characteristics or elements of this particular concept as follows: spouse; heterosexual marriage (homosexuality is not counted); not in the name of husband and wife; co-habitation; persistence in time; stability in state. It should be pointed out in particular that common residence here is not equal to common residence, which is two different concepts. The concept of common residence emphasizes common residence or living together, while common residence means that both sides have common residence.
Although there are clear explanations for the cohabitation of spouses and others in judicial interpretation, there are still disputes on how to define the concept of "continuous and stable co-habitation" in individual cases. In practice, we should consider the length of cohabitation, the stability of the unfair relationship before cohabitation, the subjective pursuit of both sides, and the comparison with the accidental, adultery without fixed place and loving relationship. We should not only consider the length of cohabitation as the sole criterion. The phenomenon of cohabitation between spouses and other people refers to such phenomena as "Bao Er Daughter-in-law", "Bao Er Ye" and "loving residence".
3. Legal Liability for Cohabitation of a Spouse and Other Persons
1. The court may serve as the basis for divorce judgment.
As cohabitation between a spouse and another person violates the obligation of monogamy and mutual loyalty in the Marriage Law, Article 3 of the Marriage Law clearly stipulates that "cohabitation between a spouse and another person is prohibited". Article 32 of the Marriage Law also stipulates that if a man or a woman requests a divorce, there exists a spouse who cohabits with another person; if mediation by the court is invalid, the court may serve as a reason for judging a divorce.
2. The party without fault may claim damages
Article 46 of the Marriage Law also stipulates that if a spouse cohabits with another person and causes divorce, the party without fault has the right to claim damages.
According to the provisions of Article 259 of the Criminal Law, a person who knowingly cohabits or marries a spouse of an active serviceman shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention.
4. Differences between "cohabitation of spouses with others" and bigamy and adultery
Bigamy refers to the act of marrying another person who has a spouse or knows that another person has a spouse. The prominent characteristics of bigamy or the fundamental difference between bigamy and "cohabitation of spouses and others" lie in that the perpetrators of bigamy are compatible with each other in terms of marital relationship, such as registration of marriage by deception, or living together in the name of husband and wife although they are not registered, while the actors of "cohabitation of spouses and others" do not live in the name of husband and wife. Because bigamy impairs the credibility of marriage registration of state registration organs, undermines the normal management order of state organs and the legislative principles of monogamy in our country, the law stipulates that bigamy is a criminal act and should be penalized. According to the provisions of the Criminal Law and the relevant approval of the Supreme Court, the current determination of bigamy includes two situations: one is that there are two legal marriages before and after; the other is that there are legal marriages before and after which there are de facto marriages living together in the name of husband and wife. "Cohabitation of spouses with others" has not impaired the credibility of the marriage registration of the state registration authority, nor has it openly challenged the principle of monogamy, which is relatively harmful to society. Therefore, the criminal responsibility of the perpetrator has not been investigated in the legislation. However, because this kind of behavior violates the law stipulation that husband and wife should be faithful to each other and respect each other, and causes certain damage to each other, it is very necessary that the amended marriage law stipulates that the fault party should bear the corresponding civil liability for compensation.
Adultery refers to the act in which both men and women have spouses who secretly voluntarily engage in unfair sexual relations with each other. The characteristic of adultery is that it is not relatively stable. Some adultery is occasional, while others are long-term adultery. Occasional adultery is obviously not comparable to cohabitation; long-term adultery is very similar to cohabitation. This kind of adultery lasts for a long time, and sexual partners outside marriage are relatively stable. However, the significant difference between them and cohabitation is whether the behavior characteristics are concealed or open. The former has strong concealment and secrecy, and the behavior is conducted in secret. The latter is open and common residence. Because the social harmfulness of adultery is relatively minimal, the law does not stipulate the legal consequences of the act, and adultery is not a legal concept. Therefore, at the legal level, the law does not regulate such acts of adultery or extramarital love.