France abolishes a medieval law: sex within marriage will no longer be mandatory

ParisFrance was one of the first European countries to legalize abortion and where women's liberation was most intensely experienced, especially in the late 1960s and throughout the 1970s, after May '68. But half a century later, its Civil Code continues to establish sexist principles inappropriate for the 21st century, which have resulted in such surreal rulings as the supposed obligation of spouses to have sexual relations.

The National Assembly voted unanimously on Wednesday, almost at midnight, to amend the Civil Code, putting an end to the "marital duty." The bill, now in its first reading, will have to go to the Senate, but since all parties are in favor, no obstacles are expected to its final approval. However, other controversial articles remain in French legislation, such as the one that obliges both spouses to be faithful or the existence of divorce "for fault."

The French Civil Code does not directly mention "marital duty" but establishes in Article 215 that spouses "mutually oblige themselves to live together." In practice, some judges interpret this "living together" as referring to marital duty, which promotes sexual violence within marriage because both spouses would be obligated to have regular sexual relations. This is demonstrated by various court rulings in France. Incredibly, there are court decisions in which the partner who has refused to have sex has been ordered to pay up to €10,000 in "damages" to their spouse.

European condemnation in France

The abolition of the obligation to maintain intimate relations with one's partner is the response to a Strasbourg ruling. The European Court of Human Rights condemned France last year for its use of the notion of "marital duty" in a divorce case that criticized a woman for refusing to have sex with her husband. The French appeals court had ruled that the 69-year-old woman's refusal was "a serious or repeated breach of the duties and obligations of marriage that made maintaining a life together unviable." She had filed for divorce in 2012 after 28 years of marriage. A judge granted her a divorce on the grounds of fault, a type of divorce decree provided for under French law—which does not exist in Spain—if one spouse proves that the other committed "a serious or repeated breach of the rights and obligations arising from marriage." In such a case, the affected spouse may claim compensation for damages.

Sexual violence

Before the judge, the woman was forced to explain her refusal to have sex and justified it, according to what was published Le MondeThe ruling by the European Court of Human Rights made it clear that refusing to have sex with one's partner cannot constitute a violation of marital duties and obligations: "It constitutes an interference with their right to respect for their private life, their sexual freedom, and their right to control their own body," the unanimous ruling emphasized. The court went further, warning France that "any non-consensual sexual act is a form of sexual violence." The National Assembly has not repealed Article 215 nor has it eliminated divorce on the grounds of fault; rather, it has simply added a clarifying phrase to the Civil Code: "Cohabitation does not create any obligation for spouses to have sexual relations." It also specifies that a divorce cannot be granted on the grounds of fault based on the couple's refusal to have sex. "This is about guaranteeing that consent is the indispensable condition in any sexual act, including within marriage," explained the bill's sponsors, Green Party member Marie-Charlotte Garin and center-right MP Paul Christophe. "I would like to remember all the women who have been forced, who have suffered marital rape," Garin said last night in the chamber.

Fidelity, a legal obligation

However, the Assembly rejected an amendment championed by the Socialists and Jean-Luc Mélenchon's La France Insoumise that called for the removal of the word fidelity from the same article of the Civil Code concerning the obligations of married couples. "The evolution of our society tends to make fidelity a moral issue that belongs to each individual and cannot be a legal obligation imposed on everyone," the socialists argued. For now, the French will have to remain faithful.