<h2><span style="color:#e67e22"><strong>I. HISTORICAL FOUNDATIONS: FROM MARRIAGE - INSTITUTION TO MARRIAGE – CONTRACT</strong></span></h2>
<p>The Civil Code of 1804 – worn by the institutional logic of the Napoleonic era – conceives marriage as a hierarchical social structure.<br />
Originally, article 213 of the civil code established the authority marital:<br />
“ The husband owes protection to her; his wife, the woman obedience to her husband. »</p>
<p>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).</p>
<p>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.</p>
<p>Today, article 212 of the Civil Code provides that:<br />
“ Spouses owe each other mutual respect, fidelity, help, assistance. »</p>
<p>No explicit mention of « marital duty » is not there. The notion is of jurisprudential origin.</p>
<hr />
<h2><span style="color:#e67e22"><strong>II. CURRENT LEGAL BASIS: AN IMPLIED OBLIGATION?</strong></span></h2>
<p>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.<br />
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).<br />
Example: Cass. 1st civ., May 3, 2011, n°10-17.283.</p>
<p>However, the qualification is strictly regulated:</p>
<p>• It must be a voluntary and persistent refusal;<br />
• Justified abstinence (illness, violence, legitimate circumstances) excludes fault.<br />
Recent case law has operated a major turning point this practice.</p>
<hr />
<h2><span style="color:#e67e22"><strong>III. THE CONTEMPORARY TURNING POINT: BODILY AUTONOMY AND CRIMINAL LAW</strong></span></h2>
<p>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.</p>
<p>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.<br />
This decision marks a philosophical and legal shift:<br />
➢ Marriage cannot create a sexual obligation contrary to consent<br />
➢ Bodily autonomy takes precedence over marital obligation</p>
<hr />
<h2><span style="color:#e67e22"><strong>IV. PHILOSOPHICAL ANALYSIS: CONSENT VS. INSTITUTION</strong></span></h2>
<p>The debate refers to two conceptions of marriage:</p>
<ol>
<li>
<p>MARRIAGE-INSTITUTION<br />
Classic vision: marriage establishes a community; of total life (emotional, patrimonial and carnal).
From this perspective, sexuality is constitutive of the union.</p>
</li>
<li>
<p>CONTRACT MARRIAGE BETWEEN FREE INDIVIDUALS<br />
Contemporary liberal vision: marriage organizes property and family rights and duties, but cannot constrain intimacy. body.<br />
The tension rests on a fundamental question:<br />
Does initial consent to marriage constitute permanent consent to marriage? privacy ?<br />
Modern political philosophy — heir to Kant and contemporary theories of consent — answers negatively: consent is necessarily renewable and revocable.</p>
</li>
</ol>
<hr />
<h2><span style="color:#e67e22"><strong>V. SOCIOPOLITIC ISSUE: SYMBOL OR EFFECTIVE NORM?</strong></span></h2>
<p>In current judicial practice, the « marital duty » as an autonomous sexual obligation tends to fade away.<br />
Jurisdictions favor:</p>
<p>➢ protection of dignity,<br />
➢ the integrity of the physical,<br />
➢ equality between spouses,<br />
➢ the prevention of domestic violence.<br />
From then on, the debate becomes highly symbolic.</p>
<p>For some, removing any implicit reference to marital duty would amount to deinstitutionalize marriage.<br />
For others, its maintenance — even implicit — maintains an ambiguity dangerous between emotional commitment and constraint.</p>
<hr />
<h2><span style="color:#e67e22"><strong>VI. CONCLUSION: A CHANGING REMAIN</strong></span></h2>
<p>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.</p>
<p>Today:</p>
<p>➢ Criminal law affirms the primacy of of consent.</p>
<p>➢ European law strengthens the protection of individual autonomy.</p>
<p>➢ The egalitarian conception of marriage is essential.</p>
<p>We are probably witnessing a normative reconfiguration:<br />
marriage remains a community; of life, but not a community; of constraint.</p>
<p>CENTRAL QUESTION:<br />
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?</p>
<p>This debate is not only legal.<br />
It is anthropological, political and philosophical.</p>
<p>And it is not closed.</p>
<p> </p>
<p><span style="color:#dddddd"><em>Cover photo source: Getty Images/EmirMemedovski</em></span></p>
Tendance
Headlines
“Conjugal duty”: a legal concept in tension
The « marital duty » is one of the most sensitive notions of family law in France. An expression steeped in history, morality and contemporary controversies, it crystallizes today a profound debate: is it a simple legal mechanism structuring marriage, or a socio-political symbol revealing tension between tradition, equality and bodily autonomy?
