Non 2019, in France, a man obtained a divorce with the sole blame on his wife because she had simply stopped having sexual relations with him for several years. The judges considered that lack sufficient, confirming that, within marriage, the refusal of sex could constitute a fault. That ruling did not remain an isolated episode, but became the symbol of an ambiguity that French law had carried with it for decades. Today, the turning point: the text approved by the National Assembly he writes, in black and white, that communion of life does not create any sexual obligation between spouses. And he adds that the absence or refusal of relationships can no longer be used as a reason for a fault divorce.
End of marital duty: France “regulates” spouses’ bed
The National Assembly, in fact, voted unanimously for the abolition of the so-called “conjugal duty”. This presumed principle hovered in the courts, in sentences, in fault divorces. And the paradox is that marital duty has never been written in the civil code.
Yet, for decades, it has survived thanks to judicial interpretations that have transformed a vague formula, “communion of life”, into something very concrete and very invasive. And it is in the name of that formula that some judges they determined that the refusal of sexual intercourse was a fault. This abolition does not introduce new rights. And it doesn’t change the definition of marriage.
Blanche’s Courage, French thriller film starring Virginie Efira where the protagonist discovers, after marriage, that her seemingly perfect husband is violent and manipulative in the relationship.
However, marital rape is a crime
There is also another reality that has remained hidden for too long: marital rape. In France it has been a crime since 1990. Yet, the idea that marriage entails a sexual “duty” has continued to exist. Recognize marital duty, even if only implicitly, it has helped keep alive a culture in which female rejection is questionedjustified, scaled down.
When Marie-Charlotte Garin, one of the deputies who wrote the text, spoke after the vote, she didn’t talk about articles or paragraphs. She spoke about women who have experienced rape within marriage. And he said this law is for them.
The approval of the Senate is missing
The law does not change French marriage, it remains the same, at least on paper: loyalty, support, mutual assistance. But something has shifted in depth. Because now it is clear that love, desire, the body are not obligatory performances. They cannot be expected. They cannot be imposed.
If the Senate approves the text, as expected, France will definitively close a door that has remained ajar for too long: the one that allowed the right to judge people’s sexual lives. It is not, therefore, the end of marriage, but the end of an ancient and violent idea: that getting married means giving up the right to say no.
And what about marital duty in Italy?
In Italy the “conjugal duty” has never existed as an explicit legal formula. The civil code, from its origins, has avoided entering directly into the sexual sphere of spouses. The duties that derive from marriage are others: fidelity, moral and material assistance, collaboration and cohabitation. Sex is not mentioned, neither as a right nor as an obligation.
Nevertheless, Even in Italian law, intimacy has not remained entirely outside the judicial perimeter. In some sentences, prolonged refusal of sexual intercourse was considered a violation of marital duties, not because sex was owed, but because that refusal, if deemed unjustified, was read as a unilateral breach of the marital pact. In these cases, the absence of relationships could have an impact on separation cases with charges.
Consensus becomes an impassable line
However, there is a limit that Italian jurisprudence has clearly marked. Since 1996, sexual violence has been a crime against the person and also applies within marriage. Consent is not presumed, it is not inherited with marriage, it is not automatically renewed over time. Without consent, intercourse is abuse, and is treated as such by criminal law.
On this point, criminal law does not allow for ambiguity. And this is where the difference lies with today’s France. The principle that consent is mandatory exists in Italy, although it remains entrusted to the interpretations of judges in concrete cases. The French choice was to close the gray areas: and to do so by law.
