France set to abolish concept of marital duty to have sex

Supporters hope it will help reduce instances of marital rape

On Wednesday, a bill was approved in the National Assembly, adding a clause to the country's civil code to make clear that "community of living" does not create an "obligation for sexual relations", per the BBC.

Additionally, the proposed law will make it impossible to use a lack of sexual relations as an argument in fault-based divorce.

Although the change is unlikely to have a major impact in the courts, supporters hope it will help reduce instances of marital rape.

"By allowing such a right or duty to persist, we are collectively giving our approval to a system of domination and predation by husband on wife," said the bill's sponsor, Green MP Marie-Charlotte Garin.

"Marriage cannot be a bubble in which consent to sex is regarded as definitive and for life."

The law will put a stop to an ambiguity that has persisted despite there being no explicit mention of "conjugal duty" in any legal text.

Currently, the French civil code defines the duties of marriage as "respect, fidelity, support and assistance," as well as stating that couples commit themselves to a "community of living".

So, nowhere in the texts is there any mention of "conjugal" rights. The origins of that notion lie in medieval church law.

However, judges in modern divorce suits have given a broad interpretation to the concept of "community of living" to include sexual relations.

In a well-known 2019 case, a woman was found to have withheld sex from her husband for several years, leading to a ‘fault-based’ divorce that implied her guilt.

She later appealed to the European Court of Human Rights (ECHR), which last year condemned France for allowing refusal of sex to serve as grounds for a fault-based divorce.

The ECHR's decision has since made it impossible for any French divorce to make a similar ruling, which is partially why the new law is mainly intended as a clarification, with the change unlikely to have a major impact on the courts.

For many supporters and campaigners, the notion that wives have a "duty" to agree to sex with their husbands is a belief that persists in society and needs to be confronted.

The 2024 Mazan trial, involving Gisèle Pelicot, who was repeatedly raped by men her husband invited, has become emblematic, as some defendants said they believed she had consented because of what her husband told them.

In France, marital rap is now enshrined in law, whereas before 1990, men could argue that marriage implied consent.

And since November last year, the legal definition of rape in France has also been expanded to include the notion of non-consent.

Previously, rape was defined as a sexual act carried out with "violence, constraint, threat or surprise".

However, now it is any act where there is no "informed, specific, anterior and revocable" consent. Silence or an absence of reaction does not imply consent, the law states.