A sexual relationship between husband and wife is the expression of affection they have for each other… By getting married, couples agree to sharing their life and this clearly implies they will have sex with each other.
(Sunday Telegraph, September 5, 2011)
This is the unassailable reasoning a French judge proffered in deciding a rather ironic divorce case recently. It was ironic in two respects:
- It involved a French couple, betraying the myth about the libidinous French; and
- It was the wife who petitioned on the grounds that she was not getting enough from her husband, betraying the myth that it’s just we men who suffer sex-starved marriages.
The more interesting point though is that this case should give jurisdictions around the world that provide for no-fault divorce (like the United States, Canada and Jamaica) a very compelling reason to reconsider. After all, sex is such a unique and material part of the marital contract that failure to perform in the bedroom should give rise to a legal cause of action.
I readily concede, however ,that what constitutes a failure to perform will differ from couple to couple. And it’s unfortunate that in the Telegraph’s report on this seminal case the judge did not offer any guidance.
But I think I can say without fear of contradiction that if you went from having sex four times a week before marriage to having it only four times a year after marriage, then you have grounds for a fault-based divorce – especially if your marriage deteriorates to this fallow state even before the proverbial seven-year itch.
In this case, the judge not only granted the sex-starved wife a divorce, but ordered her sex-averse husband to pay her nearly $14,000 in damages (for pain and suffering or constructive abandonment), which would not have been the case in a no-fault jurisdiction.