Thou shalt Honour Conjugal Duty

Elegant temptresses, and ‘femmes fatales’ are cliches as classic as berets and baguettes in a France where love reputedly “knows no rules” … yet when it comes to romance in the boudoir Virgil’s bon mots clearly predate the Code Civil.

The temptresses and 'femmes fatales' that are a French cliche

(Read more online here)
For while alluring Gallic seduction, and a certain Coco Chanel-style elegance and passion are integral and inimitable ingredients of an artfully promoted French lifestyle, do listen carefully to the local Maire next time you are at a French wedding ceremony. For the Mayor will read out Article 215 of the Civil Code stating that married couples must agree to lead a “shared and cohabitated life.”

The formidable reputation of the French lover – that Schneider/Brandon Last Tango in Paris touch perhaps — is you see, mandated by Article 215 (sentence 1) of the Code Civil which sets out that cohabitation (communauté de vie) is a duty of marriage. Such cohabitation involves two separate elements, the communauté de toit (sharing a roof or household), and the communauté de lit (sharing a bed) i.e. sexual relations and French Justice has ruled on these two requirements 15 times since a 1956 judgment in the Court of Cassation. Furthermore following a recent finding by the Court of Appeal at Aix-en-Provence (MONIQUE v. JEAN-LOUIS B CA Aix-en-Provence, 6e ch. B, 3 mai 2011, n° 09/05752, n° 2011/292 : Juris-Data n° 2011-014496) you can now be heavily fined if you fail to take these bed sharing obligations seriously.

As Vincent Olivier,  writing in L’Express February 18 notes “Love, they say, knows no rules. But many married couples are unaware that by law they are obliged to have sexual relations with each other, and regularly … Despite sexual liberation, the feminist wave of the 60s and 70s and the pill, the term “conjugal duty” has not disappeared, at least not in the courts where judges can and do rule firmly about marital pillow talk or lack of it, L’Express notes.

Indeed Article 266 of the Code Civil allows the judge in at-fault divorce proceedings to assess damages for particularly serious violations of marital duties (réparation des conséquences d’une particulière gravité). With respect to communauté de lit, only a deliberate, unavoidable, and persistent violation of one’s duties can be punished accordingly.

This was exactly what happened in the MONIQUE v. JEAN-LOUIS B case in Nice where a 51-year-old husband identified only by his first name was successfully sued for 10,000 euros by his wife, Monique, for failing to have sex with her for “a period of several years”.

The Aix-en-Provence court heard that the couple had been married for 21 years and raised two children. “But”, according to his lawyer, “the strains of work and illness prevented Jean-Louis from fulfilling his matrimonial duties”. However the three judges of appeal quoted both the civil and penal codes and the obligation to “lifelong cohabitation” in reaching their decision to make the financial award as part of the conditions of the divorce settlement. The judges said the husband had shown “a serious and repeated failure to fulfil the duties and obligations of the marriage”, and justified the fine under Article 1382 of the Civil Code which punishes anyone who “causes damage to another” — a very clear warning to the 240,000 couples who were married in France last year. Indeed says l’Express, the decision of the Court of Appeal went far beyond any previous case law.

Cover of "Last Tango in Paris"

Cover of Last Tango in Paris

Emmanuèle Pierroux, an advocate of the Paris Bar and author of a learned article on the subject published in Gazette du Palais commented: “Jean-Louis was badly advised. He should never have admitted anything!” He added that the outcome was insulting to “the majority of silent and sometimes shamed couples, who have known or are still going through a period of sexual abstinence, while continuing with the marriage.”

The fine levied on Jean-Louis appears to be anachronistic to say the least, especially as today women are quick to refuse to comply with the famous “conjugal duty”. “In earlier times, they would say not tonight I’ve got a headache. Now they just firmly say no and that’s that,” Dr Sylvain Mimoun, a sexologist and marriage counsellor told L’Express .

– stereotypes of France – a short film by Cedric Villain

Pascal Dibie, a lecturer at the Paris VII university told L’Express the Court of Appeal was intent on giving continuity to Roman law, which in turn has been shaped by Christianity: “From the 6th century, Christianity invented conjugal rights including sexual duties between husband and wife to combat paganism, confirm the power hierarchy and underline the woman’s role of ensuring there were offspring in the marriage”, he said.

“Society has evolved, but our judges have not,” said Emmanuèle Pierroux, expressing surprise at the amount of damages awarded. He and other lawyers, believed the settlement was exorbitant gvien that the same court in early 2012, awarded “just double that to a man born of an incestuous and non consensual relationship between his mother and an uncle”.

While it has reportedly rare for such suits to come to court MONIQUE v. JEAN-LOUIS B has established jurisprudence and provoked the ire of some feminists, says L’Express .

Emmanuelle Piet a medical doctor and chair of the Feminist Collective against Rape (CFCV), told the magazine: “the fact that a woman can claim compensation because her husband does not fulfill his conjugal duties amazes me. … In fact it maddens me. It takes us back to the time of the monarchy, when, in cases of suspected royal impotence, the marriage was consummated in public!”

She went on to condemn section 215 of the Civil Code as an “archaic residue” that should have been repealed years ago. Worse she added, “it contradicts the notion of marital rape – a concept recognised by the Court of Cassation in 1990, and written into law in 2006. Furthermore she concluded, today sexual intercourse under “duress, threat, surprise, or violence,” including spousal, is incoporated into the Penal Code and is a punishable offence.

Story: Ken Pottinger

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