Interesting article in today’s New York Times, She Was Faulted in Her Divorce for Refusing Sex. A European Court Disagreed. The article addresses a French divorce case. Wife sought a divorce claiming that her Husband’s focus on his career had affected their family life, and that he had been “irritable, violent and hurtful.” Husband argued Wife was at fault in the divorce after stopping “intimate relations.” Despite Wife’s claim that she had refused to have sex because of health problems, including a serious accident and a slipped disk, the Versailles Court of Appeals agreed with Husband, holding this denial of sex was a “serious and repeated violation” of her marital duties.
Wife appealed to the European Court of Human Rights, which reversed the French Court. It said that governments had an obligation to combat domestic and sexual violences and “the very existence of such a marital obligation is contrary both to sexual freedom and to the right to control one’s body.” It added, “The court cannot accept, as the government suggests, that consent to marriage implies consent to future sexual relations.”
Does marriage imply consent to future sexual relations? Until sixty years ago, I suspect that question wouldn’t have made sense to most people. Marriage was seen as the only authorized way for women to have sexual relations. While the culture was more tolerant of men having sex outside the confines of marriage, the expectation was that marriage gave husbands the right to sexual access to their wives. In 2025, it is murky whether marriage implies such consent.
I believe even sixty years ago men who weren’t sociopaths could distinguish between enthusiastic sex, unenthusiastic sex, and coercive sex—and that they preferred enthusiastic sex. However most high libido partners are willing to accept the occasional unenthusiastic sex when enthusiastic sex isn’t on offer. Very recent shifts in culture, especially the #MeToo movement, has led some of the men I know to question whether there is a valid distinction between unenthusiastic sex and coercive sex. The French Court’s holding basically entitled Husband to unenthusiastic marital sex. The European Court of Human Rights held he wasn’t even entitled to that.
Vickers v. Vickers, 255 S.C. 25, 176 S.E.2d 571 (1970), held that a denial of sex does not constitute physical cruelty. I handled an appeal in 1999, Walters v. Walters, where the Court of Appeals, in an unpublished opinion, affirmed a family court finding that Wife’s denial of marital intimacies constituted fault that could be considered in a denial of alimony.
Yet South Carolina law isn’t clear on whether withholding marital intimacies constitutes marital fault. Which leads back to the question this blog poses: is sex still an essential component of marriage? I really don’t know.
In my experience as a divorce lawyer, open marriage isn’t leading to happier marriages. However, I acknowledge I could simply be seeing the spouses who couldn’t make an open marriage work. I encounter few folks who enter marriage not expecting monogamy and even fewer who enter marriage expecting celibacy. What I see is a culture torn between goals of driving sexual energies into pair bonding (which I still believe leads to more stable families) and allowing folks absolute autonomy over their bodies. I suspect these conflicting goals is one of the causes of the declining rate of marriage that shows no sign of abating.
