Is fidelity still considered a duty between spouses?

If fidelity within a couple is still considered "essential" for three quarters of the French people questioned in 2017, it must be noted that this conjugal duty, provided for by article 212 of the Civil Code (which must be read by the mayor to the future spouses at the time of their union) appears to be on the way out. This phenomenon can be seen both in the facts and in the decisions of the judges.

First of all, an IFOP study carried out in 2014 found that 55% of the French admitted to having been unfaithful, with the highest rate in Europe.

Then, today, we see that infidelity is the subject of such media coverage that it appears as a kind of "compulsory passage" in marriage in order to achieve happiness.

This is what the ads for the extramarital site Gleenden seem to say, with slogans like "Anyone can make a mistake. Especially now. ", " Sometimes remaining faithful is the greatest mistake... "or "Stay faithful... to your desires".

This campaign inevitably shocked marriage advocates and a Catholic association filed a complaint before the jury of advertising ethics. This complaint was dismissed on December 6th, 2013 on the grounds that the disputed advertisement did not offer "any photo that could be considered indecent, nor any incitement to lie or towards duplicity".

The association, acting in defence of the deceived spouses, then brought the case before the Tribunal de Grande Instance de Paris, and its dispute mainly concerned the nullity of the contract between Blackdivine, the site manager, and the users for illegal cause and as contrary to morality and thus prohibited by law.

On February 9th, 2017, the judges dismissed the association's claims on the grounds that it was not admissible to act in defence of the violated spouses. Indeed, "the obligation of fidelity is part of a public policy of protection and not of a public policy of direction", since it can therefore be subject to derogations and only spouses can avail themselves of it (TGI Paris, 9 February 2017, n° 15/07813). Will fidelity no longer be mandatory?

Slowly but surely, fidelity tends to disappear as an obligation of marriage. Since 1975, adultery has been decriminalized and is no longer a peremptory cause of divorce. With regard to gifts, a donation made in the context of an adulterous relationship is not null and void as having a cause contrary to morality (Cass., ass. plén., October 29th, 2004, n° 03-11.238).

In the field of matrimonial brokerage, the Court of Cassation considered that such a contract concluded by a married man “is not null and void, as having a cause contrary to public policy and morality" (Civ.1re, 4 November 2011, n° 10-20.114). The duty of fidelity is therefore clearly devalued by judges.

Certainly, some decisions still show that this sense of duty still persists, both after a non-conciliation order and during the divorce proceedings (Civ.1re, November 9th, 2016, n° 15-27.968), and after a de facto separation of the spouses (CA Paris, November 17th, 2016, n° 14/14482).

The judges, taking into account the evolution of new technologies, also extended the requirement of fidelity to intellectual infidelity. Infidelity is no longer reduced to adultery, in the sense that it is not only sexual but can also be intellectual through social networks (CA Douai, February 28th, 2013, n° 12/02395), dating sites (Civ.1re, April 30th, 2014, n° 13-16.649), SMS (Civ.1re, June 17th, 2009, n° 07-21.796) and e-mails (CA Aix-en-Provence, September 8th, 2005, n° 04/11100).

However, judges' understanding of the duty of fidelity can sometimes be confusing. Thus, with regard to intellectual infidelity, judges have difficulty in admitting a violation of Article 212 of the Civil Code. Instead of explicitly denouncing the disrespect of the duty of fidelity by one of the spouses, they merely state that the conduct of a spouse "constitutes a serious and renewed breach of the obligations of marriage" (Civ. 1re, April 30th, 2014, n° 13-16.649 mentioned above on dating sites), without specifying the breach in question.

In addition, the Court of Cassation disturbs the situation by questioning the importance of fidelity in the face of changing morals. Thus, in a case against a publisher involving a politician and former minister whose romantic and extramarital life had been disclosed in a book, they make the statement that the evolution of morals and moral conceptions no longer makes it possible to consider that the imputation of conjugal infidelity alone would be likely to undermine honour or consideration (Civ.1re, December 17th, 2015, No. 14-29.549). This decision also reiterated this solution in the case of the same politician against the perpetrators.