Switzerland, France and intimate relationships...

Switzerland, France and intimate relationships...

 "In your column published on 22 January, you explained that there was a time when rape within a couple did not exist, and that marital duty seemed to include a certain obligation to have intimate relations with one's spouse. I read a French article in which a man was ordered to pay 10,000 Euros in damages for not having had enough sex with his wife! Does this also exist in Switzerland? " 

Roger

Article 215 of the French Civil Code (CCF) states that "the spouses are mutually obliged to live together" and, according to French case law, this includes having intimate relations. In addition, article 242 CCF states that divorce may be sought by a spouse where acts constituting a serious or repeated breach of the duties and obligations of marriage are attributable to the spouse and make it intolerable to continue living together. Lastly, article 266 CCF provides that damages may be claimed when a divorce is granted to the exclusive detriment of one spouse.

In France, it is therefore possible to apply for a divorce on grounds of fault in the event of a lack of intimate relations and, if the court finds that the spouse is solely at fault because he or she refuses to honour this aspect of his or her 'marital duty', to claim compensation from his or her spouse! Mind you, this does not mean that a husband can force his wife to have sex - marital rape is also punishable by law in France - but a systematic refusal to cuddle on the pillow can have civil consequences...

In Switzerland, the search for the spouse at fault in divorce proceedings is no longer practised. At most, article 115 of the Swiss Civil Code provides that it is possible to file for divorce unilaterally before the expiry of the two-year period of separation when serious reasons not attributable to the petitioner make the continuation of the marriage unbearable, especially in cases of physical violence. However, this provision is interpreted very restrictively by the Federal Court, as adultery, for example, is not sufficient.

In our country too, spouses owe each other fidelity and assistance; however, the law does not mention a duty to maintain intimate relations. It is therefore not possible to accept that a lack of sexual relations would constitute a serious fault entitling the spouse to an immediate divorce and, a fortiori, to damages.