The French attitude to making love is a matter of renown, but now there is judicial precedent showing that a failure to deliver a reasonable sexual performance over time can result in a claim for damages.
A civil appeals court in Aix-en-Provence has awarded €10,000 damages to a wife for having to endure her ex-husband’s sustained lack of sexual interest in her for several years.
The award of compensation for “injurious abstinence” in Monique v Jean-Louis B was made under article 1382 of the French civil code. French law says that married couples undertake to lead a “shared communal life” and the appeals court ruled that this includes reasonable sexual consortium.
Monique, 47, had brought the action following 21 years of marriage which she claimed were sexually unfulfilling. Her husband, 51, defended the allegation by arguing that there was significant sexual liaison albeit intermittent because of his health problems which included chronic fatigue arising from a heavy work schedule.
The court rejected the husband’s case. It stated that a sexual relationship between a husband and wife manifests the affection they have for one another and ruled “in this case it was absent”.
It found that the husband had failed to prove to the court that health problems were the reasons for his continuing abstinence from sex.
Historically, the English church courts would sometimes order a medical examination of a husband to determine whether he had the physical capacity to consummate a marriage. In 1778, for example, in a Canterbury case, penis inspectors were appointed by the court to evaluate the man’s virility.
The medical examination showed that the husband’s manhood (known legally as his “virile member”) was judged to be “soft and short”.
The court, however, noted that such flaccidity “does not always continue” (a man, after all, might not be fully aroused when being inspected by officers of the law) and ordered the marriage to run for three months before judgment could be conclusive.
In England, the matrimonial obligation is to maintain a “mutually tolerable sexual relationship” although even that doesn’t apply across the life of a marriage. The old legalistic maxim that normal frequency of marital sex is “twice a week”, expressed in the delicate maxim bis ruere in hebdomade (to disturb twice in seven) isn’t concrete law.
As the seasoned family law judge Lord Merriman said in a case in 1947 “No one can sit here as long as I have sat without realising that there is the greatest diversity of standards between one set of spouses and another as to what is or is not a normal standard of sexual intercourse”.
In the 1947 case he ruled that a husband who’d been prodigious in his sexual demands “sometimes even as much as five times in one night” and who had also made “certain revolting suggestions” to his wife about alternative sexual practices, was acting unreasonably. The major text on sex law says it would be unreasonable if “a husband insists on sex after every meal”.
In 1960, the Court of Appeal ruled that a wife from Croydon was in breach of her marital obligations when, with great intolerance towards her husband who wasn’t as sexually charged as she was, she repeatedly badgered him for sex.
To rouse him into copulation she would, in the early hours of the morning, “pull his hair, catch hold of him by the ears, and shake his head violently to and fro”.
By always eventually conceding to her demands, however, the husband was judged to have accepted her behaviour. So, no divorce for him – a crash helmet in bed was his only legal option.
Gary Slapper is Global Professor at New York University, Director of New York University in London, and Visiting Professor of Law at The Open University. His latest book More Weird Cases is published by Wildy, Simmonds & Hill
You can follow him on Twitter @garyslapper
Comments
musing whether Professor 'Slapper' was purposefully chosen for this one...