France is about to enshrine in law the end of so-called “conjugal rights” – the idea that marriage means a duty to have sex.
A bill approved on Wednesday in the National Assembly adds a clause to the country’s civil code to make clear that “community of living” does not create an “obligation for sexual relations”.
The proposed law also makes it impossible to use lack of sexual relations as an argument in fault-based divorce.
Though unlikely to have a major impact in the courts, supporters hope the law will help prevent 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 remove an ambiguity that has continued 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,” and it says that couples commit themselves to a “community of living”.
Nowhere in the texts is there any mention of “conjugal” – meaning sexual – rights. The origins of that idea lie in medieval church law.
However, judges in modern divorce cases have, from time to time, given a broad interpretation to the concept of “community of living” to include sexual relations.
In a famous case in 2019, a woman was found to have withheld sex from her husband for several years, and he was then granted a “fault-based” divorce implying guilt on her part.
But the woman then took her case to the European Court of Human Rights (ECHR), which last year condemned France for allowing refusal of sex to be grounds for a fault-based divorce.
This was celebrated as an important advance by feminist campaigners.
The ECHR’s decision has made it, in practice, impossible for any French divorce judge to make a similar ruling – which is why the new law is mainly intended as a clarification, with the change unlikely to have a major impact on the courts.
For campaigners, the idea that wives have a “duty” to agree to sex with their husbands is one that persists in parts of society and needs to be confronted.
The Mazan trial of 2024 – where a drugged and unconscious Gisèle Pelicot was repeatedly raped by men invited by her husband – is seen as emblematic. Several defendants said they assumed her consent because of what her husband had told them.
In France, as in most other countries, marital rape is now established in law, whereas before 1990 men could argue that marriage implied consent.
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”. Now it is any act where there is no “informed, specific, anterior and revocable” consent. Silence or an absence of reaction do not imply consent, the law says.
