France is poised to formally end the long-standing notion of “conjugal rights,” which implied a marital duty to engage in sexual relations. A new bill, approved in the National Assembly, will amend the country’s civil code. This amendment clarifies that the concept of a “community of living” within marriage does not impose an obligation for sexual relations between spouses.
Furthermore, the proposed legislation aims to prevent the lack of sexual relations from being used as grounds for a fault-based divorce. While its direct impact on court rulings may be limited, proponents believe the law will serve as a vital tool in deterring marital rape.
Marie-Charlotte Garin, a Member of Parliament for the Green party and a sponsor of the bill, stated that perpetuating such a right or duty essentially sanctions a system where husbands might dominate and prey upon their wives. She emphasized that marriage should not be considered a space where consent to sex is treated as absolute and permanent.
This legislative change is designed to resolve an existing legal ambiguity. Historically, French legal texts have not explicitly mentioned “conjugal duty.” The civil code currently outlines marital obligations as requiring “respect, fidelity, support and assistance,” alongside a commitment to a “community of living.” Nowhere in these statutes is there a direct reference to “conjugal,” or sexual, rights. The historical roots of this idea can be traced back to medieval church law.
However, judicial interpretations in modern divorce proceedings have, on occasion, broadly construed the “community of living” to encompass sexual relations. A notable instance occurred in 2019 when a woman was found to have withheld sex from her husband for several years. Consequently, a divorce was granted on grounds of fault, attributing blame to her.
The woman subsequently appealed her case to the European Court of Human Rights (ECHR). Last year, the ECHR ruled against France, condemning the allowance of refusal of sex as a basis for a fault-based divorce. Feminist organizations hailed this ECHR decision as a significant step forward.
Following the ECHR’s ruling, it has become practically impossible for any French divorce judge to issue a similar judgment. Therefore, the new law is primarily intended as a legislative clarification, with the expectation that its impact on judicial decisions will be minimal. Nonetheless, for advocates and campaigners, the idea that wives have a “duty” to consent to sex with their husbands continues to be a persistent societal issue that requires deliberate confrontation.
The 2024 Mazan trial, involving the repeated rape of Gisèle Pelicot while she was drugged and unconscious by individuals invited by her husband, is seen as a stark example of this ongoing problem. Several defendants in that case reportedly assumed consent based on the husband’s prior statements to them.
In France, much like in many other countries, marital rape is now explicitly prohibited by law. Prior to 1990, men could argue that marriage implied consent. More recently, since November of the previous year, the legal definition of rape in France has been broadened to explicitly include the concept of non-consent. The definition has shifted from acts committed through “violence, constraint, threat or surprise” to any sexual act lacking “informed, specific, anterior, and revocable” consent. The updated law clarifies that silence or a lack of resistance do not, in themselves, constitute consent.