French divorcee who stopped having sex with husband wins appeal at European court
French divorcee who stopped having sex with husband wins appeal at European court
A woman, who was blamed by French courts for her divorce because she no longer had sex with her husband, has won an appeal in Europe's top human rights court, the court said on Thursday, reigniting a debate in France over women's rights.
...
[Lawyer, Lilia Mhissen] "This decision marks the abolition of the marital duty and the archaic, canonical vision of the family," she said in a statement. "Courts will finally stop interpreting French law through the lens of canon law and imposing on women the obligation to have sexual relations within marriage."
Marriage needs to stop being looked at through the lens of religion. It is and always has been a tax tool. Itâs extremely easy to enter a marriage. You should just as easily be able to exit .
Though as the current default in many places is "split everything you both own 50:50 including all the things before getting married", it has to be a bit complicated as rarely were the starting conditions equal.
I'm pretty sure most countries exclude what was owned by the respective parties before the marriage from the shared ownership and things like inheritances can be exempt even during the marriage.
Also people can agree on different models of ownership.
I agree though, that the idea behind the default 50/50, which is to protect mostly women, who make less money as they focus on the household and kids instead of making a career does not work as as a singular concept. Either you have a traditional role separation in the marriage and the legal protections for that apply, or you have a different model that requires different rules.
I also think exit contracts (like a pre-nup) should be agreed on and signed as part of the marriage contract. Marriage is a business contract. Both parties should agree to the exit terms before entering into the contract.
This is a pretty good way to spot a person who you shouldnât marry, too. âIf we get divorced, youâre fuckedâ in writing is pretty clear.
That's interesting, I thought there already were judgments in this direction.
For more details, french law has an article that says spouses mutually compel to live in partnership. (don't know how to translate it best, "les époux s'obligent mutuellement à une communauté de vie"). This is a very unclear sentence, which has been considered by judges to imply that it requires spouses to live under the same roof and to have sex. I think i remember hearing of a ruling stating that in the case of a lesbian lady and an asexual man that got together to have a social facade and live their sexual lives separately, they still were "living in partnership" and that the absence of sex could not cancel their union, but maybe it was only stated once.
That was one part that disgusted me a lot when learning about french law, glad it's changing for the better, hope it will change faster.
Is there no-fault divorce in France?
I'm not a lawyer (nor married), so my understanding is limited, but if both spouses agree to divorce (with or without agreeing on the exact conditions e.g. childcare), then that would constitute a no fault divorce. It seems to get messier if one spouse doesn't want to consent to the divorce, then the notion of fault starts appearing. And that's where my incomplete knowledge stops, both on the letter of the law and how it is applied in practice. The judge seems to have a lot of latitude as to whether the fault, if any, leads to consequences (financial reparations are a possibility).
This is more of a technical matter, but how does this European Court of Human Rights verdict get incorporated into law?
The US Supreme Court's verdicts get implemented rather easily because the US uses common law where judicial rulings become law and lawyers get a wide berth to interpret laws. In contrast, France has a civil law system, where judges are supposed to interpret the law rather narrowly and verdicts aren't supposed to have any legal weight.
There is a pyramidal conception of rules in the france legal system, something like local regulation < regional regulation < decree < law < international law < constitution. So judgements in courts created by international laws are technically stronger than national judgments.
Also, the decisions of judges have no imperative power, but they are used by judges to solve future cases, and have a de facto big impact on the interpretation of laws. It's called jurisprudence : to say it quickly, when a judge does not know how to handle an unclear law, they look at what other judges said before.
This article is skipping the whole other side of what's being ruled on. What are the consequences of trying to get divorced while being ruled at-fault for it? They refer to it as 'rape culture', but that seems like extremely inflammatory language without knowing 'why'. Like, is it a threat of being kicked out of the house destitute as the person at fault gets nothing? I agree that would be coercive. I just want the consequences explained so we know why it is rape culture as I don't live in France.
Edit: to everyone tripping over themselves to white-knight against rape justifications this is closer to why I asked / the legal particulars
If someone is facing financial repercussions for not wanting to have sex with someone else, that's rape culture kind of by definition.
Also, the article is not skipping on other aspects. The husband apparently threatened violence as well. It's right there in the article:
The woman, who married her husband in 1984 and had four children with him, wanted the divorce, but contested being blamed for the breakdown, arguing it was an unjust intrusion into her private life and a violation of her physical integrity. She cited health problems and threats of violence from her husband as reasons for why she had not had intimate relations from 2004 onwards.
Basically she's saying to the court "it's none of your business why I don't want to have sex with him any more", and ...she's right.
Idk man, legally blaming a woman for a divorce because she no longer wants to have sex feels pretty rape culture-y to me, regardless of any additional information or context. If it's one party's fault, then one party did something wrong. Do you think it's wrong for someone to have the right to refuse sex? In other words, should women have the right to say no?
I definitely agree that either person in the marriage has the right to say no. But I also think that this would be a good enough reason for the other person to want a divorce.
Now if the other person wants to divorce after one rejection, that's clearly a lack of foundation, imho. But sustained rejection sure.
Now one would wonder why would a person be rejecting for this long. Medical issues are not the same as some other reasons.
itâs wrong for someone to have the right to refuse sex?
In the context of swearing an oath that you would have sex, yes it would be your fault for breaking the oath. Inferring a duty to be raped is taking this to ridiculous levels. If someone doesn't want to they ofc shouldn't have to, but, that is why I am asking about the legal consequences of being at-fault.
Saying, 'you broke your oath' is one thing. Forcing someone to fulfill their oath under threats of violence, or destitution are another. I wish people on here had a better grasp of nuance.
Fuck "extremely inflammatory". We shouldn't tip-toe around calling out sexual violence. Does the woman want to have sex? No. Is it demanded/coerced of her anyway? Yes. That's rape, bro.
Don't trust me, but I think France is one of the countries that still don't view rape of your spouse as rape
Edit: this is not true anymore
https://en.wikipedia.org/wiki/Marital_rape_laws_by_country
France Explicitly criminalised The law criminalises rape, including spousal rape, and domestic violence, and the government generally enforced the law effectively. The Court of Cassation authorized prosecution of spouses for rape or sexual assault in 1990. In 1994, Law 94-89 criminalised marital rape; a second law, passed 4 April 2006, makes rape by a partner an aggravating circumstance in prosecuting rape. (Article 222-24(11) of the Criminal Code)
I figure the crux of an argument would more likely rest on defining consent, which is where there's always progress to be made.
Also there was a massive trial that ended just recently about the mass rapes of a wife who was drugged to sleep by her husband and offered to people for years without her knowledge. Of the 50 guys including the husband, most of them got prison I think.
https://en.wikipedia.org/wiki/Rapes_of_GisĂšle_Pelicot
All over the news for months here and it made some degree of International noise, at least in Europe. Dunno about the US.
Edit to your edit - "not true anymore" is an understatement, it hasn't been true for 30 to 35 years.
Yeah, you should not be trusted at all for this. It's ridiculous.