Reported by Mediapart, a woman was sanctioned with a divorce "to her own fault" by the French courts for refusing to have sexual relations with her husband. Would the "conjugal duty" still be present?
In an article, published this Wednesday, March 17, 2021, the Mediapart site echoes a case that leaves you speechless, especially in the 21st century. A woman, Barbara *, 66, was sanctioned by the French courts with a divorce. His fault" ? Denying sex to her husband. It was in 2019 that the Versailles Court of Appeal granted the fault divorce "to exclusive wrongs" by Barbara. And a final decision was announced in September 2020. The court ruled that this refusal constitutes "a serious and renewed violation of the duties and obligations of marriage, making the maintenance of common life intolerable". Following this decision, Barbara, who mentions a return of the "marital duty ", seized on March 5, 2021 with the support of several feminist associations the European Court of Human Rights (ECHR) to condemn France. "This is a condemnation from another era. It scandalizes me. I see it as a denial of justice", she declared. Asked by Mediapart, Barbara's ex-spouse declined to speak. "You will understand that I cannot respond favorably to your request, concerning a family law case, and for which respect for professional secrecy must be absolute ", replied, for his part, his lawyer, Pascal Koerfer.
What the law says ?
Saying no to intimate relationships with your spouse can be considered a fault during a divorce. Thus article 242 of the Civil Code stipulates that "Divorce can be requested by one of the spouses when the facts constituting a serious or renewed violation of the duties and obligations of marriage are attributable to his spouse and make the maintenance of common life intolerable." Thus the judges can consider that the sexual relations are a conjugal duty like the duty of help, assistance or fidelity. For the lawyers of Barbara, Lilia Mhissen and Delphine Zoughebi, this decision is "medieval" and "scandalous". "We must definitely put an end to the days when a man had his wife's body as he pleased. In 2021, marriage can no longer be synonymous with sexual servitude.", told Mediapart Me Mhissen.
Rape culture
"Several judges have exonerated themselves from the value of consent. They have collegially decided to condemn me because I am a married woman. Does this judgment imply that any married woman must endure the sexual demands of her husband when she does not? does not agree? Does marriage give this right? ", Barbara explained to Edwy Plenel's media. For her, this sanction is directly "in the culture of rape, which is still very present in people's minds, to the point that judges recognize it as fair. (…) justice undermines the right of people to dispose of their bodies. That is why it is necessary to challenge it ". The Women's Foundation, in a press release, recalls that "the Criminal Chamber of the Court of Cassation has abolished the conjugal duty since a judgment of September 5, 1990" except that "Civil judges continue to impose it through an archaic view of marriage." Recall that in 47% of the 94,000 rapes and attempted rapes per year, the perpetrator is the spouse or ex-spouse of the victim, according to official figures dated 2018.
* First name changed.