marital debt
{{Short description|Spouse's sexual commitment to one another}}
{{distinguish|text = the duty owned by married couples in marital property systems}}
Marital duty (commonly referred as conjugal duty) is a spouse's sexual commitment to one another. The concept stems from descriptions found in canon law of medieval Europe.
History
During the later medieval period (10th to 15th centuries), a new scholastic way of thinking allowed the Church to solidify doctrine, leading to the formation of ecclesiastical law. This new wave of thinking stemmed from the revival and codification of some Roman laws. Particular works from Irneius and his students in 1112 and 1125 in particular, reconstructed some laws of Justinian's Code.{{Cite book|title = The History of Medieval Canon Law in the Classical Period, 1140-1234 From Gratian to the Decretals of Pope Gregory IX|last = Hoeflich|first = Michael|publisher = The Catholic University of America Press|year = 2008|isbn = 9780813214917|location = Washington D.C.|pages = 13|editor-last = Hartmann|editor-first = Wilfried|chapter = The Establishment of Normative Legal Texts: The Beginnings of the Ius commune}} Work on laws allowed scholars to debate the issues like marriage as a sacrament.{{Cite book|title = Women and Gender in Medieval Europe: An Encyclopedia|last = Schaus|first = Margaret|publisher = Taylor & Francis|year = 2006|isbn = 9780415969444|location = |pages = 164}}{{Cite web|title = Catechism of the Catholic Church - IntraText|url = https://www.vatican.va/archive/ENG0015/__P50.HTM|website = www.vatican.va|accessdate = 2015-10-27}} Biblical references to marriage, like that found in [https://www.biblegateway.com/passage/?search=1+Corinthians+7&version=NIV 1 Corinthians 7] alludes to it as a preventative measure for "sexual immorality." Scholars like Gratian of Bologna were quick to posit their theories on marriage. His 12th century work, Decretum Gratiani, became an early text example for other canon law studies and it is here where the earliest account for marital debt is found. In it, he writes that marriage arose from wishing to prevent further sin through fornication. Gratian is also quick to point out four main reasons people may have for getting married: that is for offspring, to pay the debt, or the obligation of sex, for incontinence, or to satisfy lust and for the sake of pleasure.
A pattern of reciprocal sexual obligation then emerged. Spousal consent, from interpretations on marital debt, allowed spouses to more easily influence the lives of their other spouse. They lived in communal bond, a sexual bond known as a "conjugal domicile".{{Cite book|title = The Oxford Handbook of Women and Gender in Medieval Europe|last = Bennett|first = Judith|publisher = Oxford University Press|year = 2013|isbn = 978-0-19-958217-4|location = Oxford|pages = 163–178;70|last2 = Karras|first2 = Ruth|work = Women and Gender In Canon Law|editor-last = McDougall|editor-first = Sara |editor-link=Sara McDougall}} One notable example of the strength of this bond, was when a husband wished to leave his marriage for a monastic life but he remains in a sexual debt to his wife. He, therefore, could only leave for the monastery if his wife consents to his departure.{{Cite book|title = Medieval Masculinities: Regarding Men in the Middle Ages|last = Lees|first = Clare|publisher = U of Minnesota Press|year = 1994|isbn = 9780816624263|location = Minneapolis|pages = 61–72|last2 = Fenster|first2 = Thelma|last3 = McNamara|first3 = Jo Ann|work = Burdens of Matrimony: Husbanding and Gender in Medieval Italy|editor-last = Stuard|editor-first = Susan}}
Impact
Ecclesiastical courts were increasingly becoming a venue for couples to resolve marital disputes in the 11th and 12th centuries. It thus became important for the church to further consolidate and solidify canon law, so the courts could resolve the numerous cases. These increasingly strict canon laws made it much more difficult to get divorced or have a marriage annulled. One way to get a marriage annulment was if one spouse was impotent, in other words, if they could not fulfill the marital debt. In these cases, the healthy spouse could remarry while the impotent one could not.{{Cite book|title = Law, Sex, and Christian Society in Medieval Europe|last = Brundage|first = James|publisher = The University of Chicago Press|year = 1987|isbn = 0226077837|location = Chicago|pages = 202}} There was some disagreement amongst the clergy about cases where a person was capable of fulfilling the conjugal debt, but was sterile and could not procreate. In these cases, some thought that you needed to be able to procreate to maintain the marriage.{{Cite book|title = Law, Sex, and Christian Society in Medieval Europe|last = Brundage|first = James|publisher = The University of Chicago Press|year = 1987|isbn = 0226077837|location = Chicago|pages = 456}}
Conjugal duty also had implications in terms of gender equality.{{Cite book|title = Equally in God's Image|
editor-last1 = Holloway|editor-first1 = Julia Bolton|publisher = Peter Lang Publishing, Inc|year = 1990|isbn = 9780820415178|location = New York|pages = 129–143|editor-last2 = Wright|editor-first2 = Constance S|editor-last3 = Bechtold|editor-first3 = Joan|chapter = The Conjugal Debt and Medieval Canon Law|last = Makowski|first = Elizabeth|chapter-url=https://resources.saylor.org/wwwresources/archived/site/wp-content/uploads/2011/04/The-Conjugal-Debt-and-Medieval-Canon-Law.pdf}} For example, a woman had just as much right as a man to demand the debt. The conjugal debt "took precedence over most other duties." Even in the case where a lord had called a man to rally. If his wife had insisted on the debt, "the wife's rights took precedence over the lord's."{{Cite book|title = Law, Sex, and Christian Society in Medieval Europe|last = Brundage|first = James|publisher = The University of Chicago Press|year = 1987|isbn = 0226077837|location = Chicago|pages = 359}} A similar situation applied for crusading. If a man wanted to go on crusade he needed permission from his wife, because "his departure would deprive her of the sexual solace that he owed to her."{{Cite book|title = Law, Sex, and Christian Society in Medieval Europe|last = Brundage|first = James|publisher = The University of Chicago Press|year = 1987|isbn = 0226077837|location = Chicago|pages = 283}}
Modern day
Article 215 of the Napoleonic Code (1804) says that "spouses mutually oblige themselves to a community of life", derived from previous ecclesiastical notions of marital duty. In 2019, French courts determined that a married couple who ceased sexual relations with each other were not eligible for no-fault divorce as the wife had not performed her "marital duties".{{cite news |last1=Brioulet |first1=Cyril |title="Devoir conjugal" : une femme refuse des rapports sexuels à son mari, la justice prononce un divorce pour faute, la France condamnée |trans-title='Marital duty': a woman refuses sexual relations with her husband, the court grants a divorce for fault, France condemned|url=https://www.ladepeche.fr/2025/01/23/une-femme-de-69-ans-refuse-des-rapports-sexuels-a-son-mari-la-justice-prononce-un-divorce-pour-faute-la-france-condamnee-12464672.php |access-date=26 January 2025 |work=La Dépêche |date=23 January 2025 |language=fr}} This interpretation has been used during French court proceedings, but since the 1990s has been criticised by lawyers and women's rights groups, who view the concept of marital duty as ignoring sexual consent and dismissing concepts of marital rape.{{cite news |last=Gabel |first=Barbara |title=Le "devoir conjugal", une notion archaïque du Code civil français invalidé par la CEDH |trans-title='Marital duty', an archaic notion of the French Civil Code invalidated by the ECHR |url=https://www.france24.com/fr/france/20250124-le-devoir-conjugal-une-notion-archa%C3%AFque-du-code-civil-fran%C3%A7ais-invalid%C3%A9-par-la-cedh |work=France 24 |date=24 January 2025 |language=fr}} In 2025, the European Court of Human Rights ruled in H.W. v. France that the ruling in France had ignored the wife's right to respect for private and family life under Article 8 of the European Convention on Human Rights.