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"French Court Reverses Virgin Annulment":

I blogged about the case in June; an appeal court just reversed the original decision yesterday:

A French appeal court overturned Monday a ruling that annulled the marriage of a Muslim couple after the husband discovered his bride was not a virgin, the husband's lawyer said....

His wife, who admitted to him she had had pre-marital sex, said she accepted the annulment....

State prosecutors had said they were not against allowing the split if it were possible to replace the "discriminatory motive" of loss of virginity with a more general one, such as mistaken identity....

My thinking on the matter remains what it was in June:

In principle, it seems to me that a spouse should be free to divorce the other spouse when the marriage was based on a lie. I think it's silly to care about whether one's bride was a virgin, but people are entitled to care about qualities that I think are irrelevant, as well as the indubitably relevant quality of truthfulness. Given this, it seems to me not very important whether this is called a divorce or an annulment, especially given that as I understand it French law generally allows no-fault divorce, at least when there's mutual consent.

Now I would be troubled if the law saw lack of virginity as a quality that is "essential" but other things as qualities that aren't "essential." That would be an endorsement by the legal system of the unsound view that virginity is extraordinarily important in a wife. I would also be troubled if the law encourages disputes about exactly what was said by one spouse to the other, since I suspect this would lead to lots of lying and not much truth-finding.

But if the couple agrees about the facts, and agrees that, to quote the AP's paraphrase of the court ruling, "in this particular marriage, virginity was a prerequisite," then allowing the annulment seems to me fine. In fact, it's better for the court to focus on what was essential to the parties rather than to select which qualities are "objectively" essential and which aren't objectively essential. I'm a big believer in decisionmaking using objective standards in lots of situations — but two people's decision about what's important to them about a spouse doesn't strike me as a situation that calls for such objective standards. And, I stress again, if the parties could have gotten divorced in any event, why the strong objection to letting them get an annulment instead?

Now I understand that there is a lot of insistence on virginity in many Muslim families (and some non-Muslim ones, though my sense is that in France this insistence is likely much less common among the non-Muslim population). As I said before, I think this is a bad basis for choosing a spouse, and I suspect that a cultural acceptance of this basis leads to all sorts of emotional pain. On top of that, my guess is that the virginity rule is definitely not applied in a sex-neutral way, which makes it even more improper in my view.

But, as I said, people are entitled to choose their spouses based on any reason at all, and to my knowledge French law allows them to agree to divorce based on any reason at all (again, at least if both agree). Saying that they may also annul the marriage based on any misrepresentation that they saw as material strikes me as no different: It's an accommodation of people's choices about whom to have a tremendously important relationship with, and we should generally accommodate those choices even when we think they are partly unwise — I say partly because while the insistence on virginity strikes me as unsound, the concern about the lie strikes me as much more proper — or reinforce unsound community attitudes.

Thanks to Religion Clause for the pointer.

Related Posts (on one page):

  1. "French Court Reverses Virgin Annulment":
  2. "Outcry After French Court Rules on Virginity":
The Cabbage (mail):
That would be an endorsement by the legal system of the unsound view that virginity is extraordinarily important in a wife.

But if the court found out she couldn't cook... oh boy.
11.18.2008 10:01am
Litigator-London:
There is a distinction between divorce and annulment in the laws of most countries. One declares a marriage never to have taken place while the other dissolves one which did.

Since France like most EU countries has something very akin to "divorce on demand" - I suspect the appeal was raised by the public prosecutor rather than the parties and on public policy grounds.

There is a legitimate public interest in not granting decrees of annulment where there are not proper grounds.
11.18.2008 10:05am
Bama 1L:
What interested me most about this story was that the groom, who was being portrayed in the French press as this horrible Islamist who could never assimilate, thought it was very important to go to a French court and have a bunch of white guys in funny costumes declare that the marriage had never occurred. I mean, according to Islam (I am pretty sure) there had been no marriage. There was no religious need to seek civil annulment. But the groom wanted his view validated by the secular state and presented secular arguments to that end. This seems like the sort of engagement with the state that is healthy for France's Muslim community.

I should say that I did not like the previous result--basically treating the bride like Rose 2d of Aberlone--but I like that the suit was filed.
11.18.2008 10:16am
Mark Rockwell (mail):
I haven't followed the particulars of this case. But I know that in the Muslim community it can be a big deal whether one was divorced or simply never married (annulled). The husband and wife both would probably rather have their marriage annulled for religious reasons.

Undoubtedly French annulment has a long (Christian) history. To what extent should the French swap arbitrary, religious based rules of annulment for another culture's arbitrary, religious based rules of annulment? It may make no practical significance which preference is adopted--and maybe they are compatible in the end--but should the French really go out of their way to make it easier for Muslim men to abandon their wives over such an idiotic issue? (At least, "idiotic" from the contemporary French point of view).
11.18.2008 10:22am
JohnEMack (mail):
"But, as I said, people are entitled to choose their spouses based on any reason at all" Like, say, being under 16 years of age?
11.18.2008 10:33am
Bama 1L:
On these facts, the groom did not abandon his bride. He didn't harm her. He didn't do anything that would make it impossible for her to marry someone with whom she would get along.

It was amusing to see that over the spring and summer, the French press kept assimilating this case to situations that are not like it. For instance, this case would be mentioned and then there would be a story on the fact that French Muslim teens who had sex while dating but--gasp!--felt they had to conceal this from their unhip parents.
11.18.2008 10:57am
Ken Arromdee:
But I know that in the Muslim community it can be a big deal whether one was divorced or simply never married (annulled). The husband and wife both would probably rather have their marriage annulled for religious reasons.

Why would "religious reasons" require a civil annulment? Wouldn't any religious reasons be satisfied by getting a civil divorce and a religious annulment?
11.18.2008 11:02am
darelf:
And why the phrase "unsound view" used? I was confused by it in the original and still am. If the proper "sound" view is that people must decide such requirements for their own marriage themselves, then how can any (legal) requirement itself be "unsound"? Surely you can't expect anyone to swallow that? I mean if it is relative, then it is relative. If not, then not. You can't take both sides.

If a requirement of virginity in marriage is "unsound" then it is so absolutely. Therefore anyone who finds value in it is obviously of "unsound mind", at least with regard to this. This seems... let me say, not well thought out.
11.18.2008 11:42am
Tatil:
If France is a community property country, wouldn't divorce require dividing property obtained during the marriage, while annulment wouldn't? That sounds like a good reason.

I guess the courts are saying that parties shouldn't deceive their future spouses, but white lies are OK and they will get to decide which ones are trivial ones and which ones are significant enough to grant an annulment. In the end, it is not that unreasonable. They don't want to deal with cases where the spouse says, "he told me he could bench press 200 pounds, but he lied, so give me an annulment."

In the end, what was she thinking? I figure it is fairly easy to figure out she was not a virgin and easy to guess that if he cared about it so much, he would actually pay attention.
11.18.2008 11:51am
einhverfr (mail) (www):
IANAL, but IMO I don't see how this would be different from a woman claiming before marriage that she really wanted to have kids but after marriage that she didn't want to at all.

From Tatil:

I guess the courts are saying that parties shouldn't deceive their future spouses, but white lies are OK and they will get to decide which ones are trivial ones and which ones are significant enough to grant an annulment. In the end, it is not that unreasonable. They don't want to deal with cases where the spouse says, "he told me he could bench press 200 pounds, but he lied, so give me an annulment."


Part of the problem is that triviality is in the eyes of the beholder. In this case, neither party argues that this was trivial, and given widespread views in some religions and in many traditional societies, I think one can argue that this is differentiable from a question of physical strength.

Now, suppose, someone had important interests in marrying someone of considerable physical strength and was duped into marrying someone who did not. Would that still be trivial?

I guess what worries me is the article:


The ruling drew furious protests from rights groups, who slammed it as a victory for religious fundamentalists and a blow to the emancipation of women that set a dangerous legal precedent.


I am not sure how this sets a dangerous precedent from a real public policy perspective (but then again, I am not French). In fact, by allowing religious fundamentalists some level of legal protection in their views, it seems to me that one robs people of a persecution mentality which gives rise to some level of extremism.

Of course, this doesn't prevent France from enacting measures (for example, prohibiting religiously mandated clothing in public schools) which would be seen as unconstitutional here. It seems to me that the only danger of the precedent is that it undermines the hostility that the French government seems to have towards Muslims, and perhaps religious thought in general.
11.18.2008 12:07pm
Tatil:

Part of the problem is that triviality is in the eyes of the beholder.

I know and I am not saying that this was a trivial matter, but it does not sound inconsistent for the courts to interfere in this case, as I am pretty sure they have been making these kinds of calls in annulment applications for a long time.


I don't see how this would be different from a woman claiming before marriage that she really wanted to have kids but after marriage that she didn't want to at all.

Well, I do. Not wanting kids affects lives of both parties in the future, but being a virgin does not, as loss of virginity is about an event in the past. I don't know if "deciding not to have kids after the wedding" is grounds for annulment, but if it is, I wouldn't see that as an inconsistency.
11.18.2008 12:26pm
Whadonna More:

Tatil:

I figure it is fairly easy to figure out she was not a virgin


You figure wrong.

I can't figure out why the wife would accept the annulment over a divorce - does it perhaps erase the taint of non-virginity in her culture? That would make sense where virginity is required, but a later-annuled couple had consummated.
11.18.2008 12:52pm
Brian S:
There is a legitimate public interest in not granting decrees of annulment where there are not proper grounds.

Please describe the legitimate public interest that is served.

I can't figure out why the wife would accept the annulment over a divorce - does it perhaps erase the taint of non-virginity in her culture?

I believe I read in earlier accounts that it's easier for the wife to remarry later if she gets the annulment. A non-virgin who has never been married [her status if she gets the annulment] has an easier time finding a Muslim spouse than a divorcee does.
11.18.2008 1:10pm
Ken Arromdee:
A non-virgin who has never been married [her status if she gets the annulment] has an easier time finding a Muslim spouse than a divorcee does.

But again, why woukld this prospective spouse look to see if the woman has had a civil annulment? Wouldn't it enough to say "it's a dovorce by civil law, but our religion considers the marriage to have been annulled"?
11.18.2008 2:25pm
Eugene Volokh (www):
JohnEMack: Certainly there are some spouses you can't marry -- ones who are underage, are closely enough related to you, are already married (in most jurisdictions), are of the same sex as you (in most jurisdictions), and so on. But the law focuses on the spouse's objective attributes, not your reasons for the marriage. So if you are generally allowed to marry a 16-year-old, because the age of consent is 16, the marriage won't be invalidated on the grounds that you only married the 16-year-old because you have a thing for teenagers, or because she's rich and you want her money, or what have you.
11.18.2008 2:37pm
Anderson (mail):
Definitely, if you're going to party with the Muslim girls, try to do so with the French Muslim girls.

Unsurprising, really.
11.18.2008 3:02pm
whit:

Not wanting kids affects lives of both parties in the future, but being a virgin does not,


it most definitely affects the groom.

if, for whatever reasons (religious or secular), the virginity of one's spouse is important to him, then finding out he had been lied to, defrauded so to speak, and was married to a person who was not whom she claimed ot be would likely affect him physically, emotionally, etc.

sex matters. for pete's sake, our society practically revolves around sex, and it's supposedly a trivial matter whether or not one's spouse lied about being a virgin?

cmon.

marriage is a contract. if you are going to enter into a contract based on outright lies about matters that were clearly important to the other party, that is not a trivial thing.
11.18.2008 5:31pm
Mark Rockwell (mail):
I don't know why the civil annulment matters. I suspect, however, that it has something to do with the fact that under Sharia, Civil is Religious. There is (arguably) no distinction. So, since France doesn't have Sharia courts, perhaps the French court is what counts.
11.18.2008 6:19pm
theobromophile (www):
In the end, what was she thinking? I figure it is fairly easy to figure out she was not a virgin and easy to guess that if he cared about it so much, he would actually pay attention.

My guess is that she's either irrational (or a liar), or felt as if she could not tell him the truth. If he's the type to run about harassing women who don't bleed (which, if I remember the facts of this case correctly, is what happened), would she really want to tell him that she had premarital sex - and run the risk that he would blab her business all over France? to her family, when that would result in anything from ostracism to honour killing?

As for the virginity thing itself: it sounds as if some of you are saying that it's only important on the wedding night (after which, neither party is a virgin, even if such were not the case the day before). To other commenters, the virginity issue is about much more than that. Now, I have my gripes with the chastity movement, and the prime one is this nonsense about one's virginity being a gift to a future spouse - as if the gift is losing it, rather than adding to the marriage. The gift is not one's virginity, but oneself, in a unique way that one has never done before. The gift that chaste spouses give each other is a unique dimension to their marital relationship which separates it, sexually, from every other dating relationship they've had.
11.19.2008 2:34am
mischief (mail):

To what extent should the French swap arbitrary, religious based rules of annulment for another culture's arbitrary, religious based rules of annulment?


I note that under Catholic canon law, you have grounds for annulment if one party deceived the other in order to obtain consent to the marriage, and the other party would not, in fact, have consented if they had not been deceived.
11.19.2008 1:03pm
whit:

The gift is not one's virginity, but oneself, in a unique way that one has never done before. The gift that chaste spouses give each other is a unique dimension to their marital relationship which separates it, sexually, from every other dating relationship they've had.



well put.
11.19.2008 2:05pm
David Larsomn (mail):
Maybe he's actually peeved because now, thanks to her, HE'S not a virgin anymore and he was tricked out of giving up this precious treasure which he had been saving for marriage to his one true soul mate. Imagine if you had been waiting all those years, saving yourself for that one someone special, whom you believed had also been saving herself for you? Only to find out you'd been played for a sucker. /s
11.19.2008 6:55pm
Lantisb3 (mail):
Virginity is all in the mind.People should not base their marriage on virginity because True love goes beyond who is virgin or who is not. If he is sore about losing his virginity then he is either insane or just looking for a way out of his marriage.
11.19.2008 7:11pm
Suzy (mail):
I think allowing virginity to be used as a criterion for an annulment is a terrible idea for one obvious reason: it is a very difficult term to define. Even theobromophile's comments above, in favor of the idea that virginity matters, make it clear why this is madness. How are we to define "virgin" without making particular value judgments that are quite likely to be discriminatory?

Is a woman a virgin if she was raped at age 10 but has never had consensual sex? Is she a virgin if she does not bleed on her wedding night? Is she a virgin if she has never had vaginal sex, though she has had oral sex? Is a man a virgin on similar grounds? If virginity requires a hymen, as it would for religious reasons accepted by the Muslims in this case above, then it's a fundamentally discriminatory concept. It's not relevant or even determinable whether men are virgins, then, because they don't have the necessary physical equipment! If it doesn't require a hymen, then what does it require? Does penetration by a finger count? Does sex with a member of the same sex count? Honestly: how would you define it?
11.19.2008 10:49pm