“Conjugal duty”: a legal concept in tension

I. HISTORICAL FOUNDATIONS: FROM MARRIAGE - INSTITUTION TO MARRIAGE – CONTRACT

The Civil Code of 1804 – worn by the institutional logic of the Napoleonic era – conceives marriage as a hierarchical social structure.
Originally, article 213 of the civil code established the authority marital:
“ The husband owes protection to her; his wife, the woman obedience to her husband. »

This model was based on a patriarchal vision inherited from Roman law and canon law, in which sexuality was The marital relationship was integrated into the purposes of marriage (procreation, social stability, inheritance).

We must wait for the great reforms of the 20th century – notably the law of July 13, 1965 on matrimonial regimes and the law of June 4, 1970 abolishing marital power – to see a principle of equality emerge between the spouses.

Today, article 212 of the Civil Code provides that:
“ Spouses owe each other mutual respect, fidelity, help, assistance. »

No explicit mention of « marital duty » is not there. The notion is of jurisprudential origin.

II. CURRENT LEGAL BASIS: AN IMPLIED OBLIGATION?

Jurisprudence has long interpreted the obligations of marriage – particularly loyalty. and the community of life (article 215 of the Civil Code) – as implying sexual existence between spouses.
The Court of Cassation admitted that the absence « extended » and “ voluntary » of intimate relations could constitute a fault within the meaning of article 242 of the civil code (divorce for fault).
Example: Cass. 1st civ., May 3, 2011, n°10-17.283.

However, the qualification is strictly regulated:

• It must be a voluntary and persistent refusal;
• Justified abstinence (illness, violence, legitimate circumstances) excludes fault.
Recent case law has operated a major turning point this practice.

III. THE CONTEMPORARY TURNING POINT: BODILY AUTONOMY AND CRIMINAL LAW

Since the recognition of marital rape by the law of April 4, 2006 (article 222-22 of the Penal Code), any sexual relationship imposed within marriage constitutes an offense.

The European Court of Human Rights, in the H.W v. France, judged that the divorce pronounced to the exclusive wrongs of a wife due to a refusal of sexual relations could infringe the right to respect for private life (article 8 ECHR), in that it disregards the freedom sexual and bodily autonomy.
This decision marks a philosophical and legal shift:
➢ Marriage cannot create a sexual obligation contrary to consent
➢ Bodily autonomy takes precedence over marital obligation

IV. PHILOSOPHICAL ANALYSIS: CONSENT VS. INSTITUTION

The debate refers to two conceptions of marriage:

1. MARRIAGE-INSTITUTION
   Classic vision: marriage establishes a community; of total life (emotional, patrimonial and carnal).
From this perspective, sexuality is constitutive of the union.

2. CONTRACT MARRIAGE BETWEEN FREE INDIVIDUALS
   Contemporary liberal vision: marriage organizes property and family rights and duties, but cannot constrain intimacy. body.
   The tension rests on a fundamental question:
   Does initial consent to marriage constitute permanent consent to marriage? privacy ?
   Modern political philosophy — heir to Kant and contemporary theories of consent — answers negatively: consent is necessarily renewable and revocable.

V. SOCIOPOLITIC ISSUE: SYMBOL OR EFFECTIVE NORM?

In current judicial practice, the « marital duty » as an autonomous sexual obligation tends to fade away.
Jurisdictions favor:

➢ protection of dignity,
➢ the integrity of the physical,
➢ equality between spouses,
➢ the prevention of domestic violence.
From then on, the debate becomes highly symbolic.

For some, removing any implicit reference to marital duty would amount to deinstitutionalize marriage.
For others, its maintenance — even implicit — maintains an ambiguity dangerous between emotional commitment and constraint.

VI. CONCLUSION: A CHANGING REMAIN

Marital duty does not exist textually in the Civil Code, but has been introduced into the Civil Code. historically constructed by jurisprudence as a corollary of the community of of life.

Today:

➢ Criminal law affirms the primacy of of consent.

➢ European law strengthens the protection of individual autonomy.

➢ The egalitarian conception of marriage is essential.

We are probably witnessing a normative reconfiguration:
marriage remains a community; of life, but not a community; of constraint.

CENTRAL QUESTION:
Can marriage still be thought of? as an institution involving intimate obligations, or should it be redefined exclusively as a legal framework respectful of the freedom of the person concerned? absolute sexual orientation of the spouses?

This debate is not only legal.
It is anthropological, political and philosophical.

And it is not closed.

Cover photo source: Getty Images/EmirMemedovski