Ground for annulment

Why can't a court oblige a Muslim disappointed that his new wife is not a virgin? Marriages are dissolved every day for more trivial reasons.

“Outrageous”, “reactionary”, “a fatwa against the emancipation of women”. These were some of the reactions to a ruling of a French court in Lille which annulled the marriage of man in his 30s and a woman in her 20s, both of North African origin. Before the wedding in July 2006, she assured him that she was a virgin. Unhappily, on their wedding night, the groom stormed out of their bedroom to tell the wedding guests that his wife had lied. The next day he called a lawyer to have the marriage annulled. The bride admitted that she had lied and eventually consented to the annulment. The ruling was handed down on April 1, although it only surfaced in the French press late last month.

Initially, the Justice Minister, Rachida Dati, who is also a Muslim who had her marriage annulled, accepted the court’s decision. The law was protecting the bride. “Annulling a marriage is a way of protecting the person who perhaps wants to undo a marriage. I think this young girl wanted... to separate quite quickly. The law is there to protect vulnerable people,” she said. However, under the pressure of public outrage she quickly changed her mind and ordered the government to appeal the annulment.

The couple were Muslims. He was a recent convert to a strict interpretation of the Qur’an and she was a nursing student. But the court’s decision did not allude to their religion. The ground for the annulment was a defect in consent. The woman realised, the court reasoned, that her virginity was an essential element in her fiancé’s eyes for the marriage and she nonetheless lied to him. The fact that the woman freely agreed to the annulment showed that she belatedly recognised that virginity was "an essential quality decisive for the consent of her husband”, in the words of the court.

In fact, lawyers for the woman say that their client is "traumatized to learn the Justice Ministry had ordered an appeal, because all she wants is this marriage over, this terrible attention and pressure off her, and to get on with her life as a free, single woman."

Huffing and puffing about European courts truckling to radical Muslim sensitivities is really beside the point. Legal experts have noted that the ruling does not say that the marriage of a woman who is not a virgin is null and void, nor that virginity constitutes an “essential quality” of the spouses. The court simply ruled that the husband would not have contracted a marriage if he had known that she was not a virgin, and that she had deceived him on this point. Therefore there was a defect in matrimonial consent, which must be free and aware. "Married life began with a lie, which is contrary to the reciprocal confidence between the married parties," it said.

According to Article 180 of the French Civil Code, a marriage can be declared void on the basis of "an error about the person or the essential qualities of the person." However, there is no clear definition of what constitutes an "essential quality." Several have been cited in past cases, including impotence, hiding a previous marriage, past prostitution or being HIV positive. French jurists stress that such annulments are not based on morality, but on freedom of consent.

The novelty of this case is that this is the first time that lack of virginity in a woman has been cited as grounds for an annulment. This helps to explain the howls of protest. In the age of Sex and the City, how can virginity be considered an “essential quality”? But if the spouses do regard it as essential, how can society and the law deny them the right to act in consequence?

Columnist Anne Chemin shrewdly observed in Le Monde, “Are there limits to the subjectivity of the spouses? Is an annulment simply a private matter, which only affects the beliefs and values of each party, or does society have a right to determine whether the arguments invoked by the spouses?... Should we allow the spouses to define what they expect from the institution of marriage?”

Nowadays, when unilateral, no fault divorce is the law of the land, is it possible to distinguish between legitimate and illegitimate consent? The court in Lille appears to have accepted a subjective view of the law: since the man regarded virginity as an essential and decisive element, the tribunal agreed to his demand for an annulment.

Some have argued that the modern way of doing things is for the disenchanted husband to have divorced his wife. But he did not want to be regarded as a divorced husband, and who can force him to choose this option if an annulment is also possible? Other pundits have said that the law should have excluded annulment on the grounds of virginity. But then it would be necessary to define what are the “essential qualities of the person” which could justify an annulment, and this would create still more problems.

The reality is that it is not easy to reintroduce objective criteria if family law is shaped more and more around the wishes of the couple themselves. If the law acknowledges that it is up to the spouses themselves to decide on the success or failure of their union, if it no longer recognises objective grounds for divorce, if subjectivism defines the essential elements of a marriage, we have no choice but to accept subjective grounds which one finds personally distasteful.

Outrage over this sad case is misplaced. The villain is not Muslim misogyny, or gender stereotypes, or sexism, or Islamicisation by stealth. Ultimately it is the Western view of marriage as a do-it-yourself commitment, without fixed rules or limits. If not replacing the cap on the toothpaste tube is grounds for legally dissolving a marriage, why not virginity?

Ignacio Aréchaga is editor of the Madrid news agency Aceprensa.