Sunday, June 8, 2008

Mistake of fact and missing hymens

As I recall from my contracts class long ago, one can invalidate a contract if there is a mistake of fact, i.e., I thought I was buying a beautiful white steed like the one at right (credit) and it turned out to be a donkey under the temporary influence of a magic potion. Translate this concept to a marriage contract, and you may get rulings like the one handed down in April (but only publicized last week) by a court in the north of France annuling the marriage of a Muslim couple because the bride had lied about her virginity. It's true that basing such an important relationship on a lie doesn't bode well for the relationship's future, but neither does requiring that the bride be a virgin. Described as a "real fatwa against the emancipation and liberty of women" by Fadela Amara, France's Secretary of State for Urban Affairs, the ruling spotlights the plight of young Muslim women who are reduced to producing false certificates of virginity (image credit) and/or spilling a little fake blood on their wedding night, or taking more drastic measures such as hymen replacement (on the rise in France). The rector of the Paris mosque denounced the ruling as putting marriage on the same plane as a commercial transaction and expressed thoughts similar to those who defend separation of church and state: "the judicial system of a modern country cannot hold to these savage traditions, completely inhuman for the young woman." The husband in question, of course, says the issue is not virginity, but the lie, and his lawyer points to the Civil Code provision stating that one spouse may have the marriage annulled if the other misrepresents her or his "essential qualities." The ruling therefore seems to uphold the notion that virginity can be one of a spouse's essential qualities, which is unacceptable in a secular, democratic country, according to French secularism expert Jacqueline Costa-Lascoux. Indeed, politicians on both left and right claim the ruling misrepresents French values, and Prime Minister François Fillon urged filing an appeal to avoid setting a precedent (this was done Tuesday and a decision should be forthcoming later this month).
I think the issue is a little more complex, and has more to do with human dignity and equality than secularism. Ms. Costa-Lascoux is right, from a human dignity standpoint, that virginity should not be considered an essential spousal quality, and lying should be grounds for divorce, not annulment (unless we want to legally qualify honesty as an essential spousal quality). But behind all the mirrors and smoke of the retrograde imposition of virginity as a marriage requirement, complete with the degrading -- for both parties -- ritual of the groom waving the wedding night's bloody sheets to the crowd outside, lurks the spectre of forced marriage. As the article I've linked to points out, the same Civil Code article that allows for missing- essential-quality annulment provides for annulment by one of the spouses or the Ministère Public -- the public prosecutor -- on the grounds that free consent to marry was not given. Many comments I've read about this case seem to be based on the idea that the woman in question and others like her have achieved some measure of sexual liberation, then hide it to marry. Ignoring the case of Lady Diana (who had to be certified a virgin to marry Prince Charles), why would a woman who is sexually liberated, which I equate with a certain degree of religious liberation, willingly go to such lengths to marry a man who insists she be -- and prove -- she's a virgin?


Marjorie Florestal said...


Thanks for this great post. I teach contracts, and I really enjoy starting out the class with a few references to who students sexism is alive and well in contract law. Here are some I use:

(1)"Executed" gifts--i.e., gifts that are already given, generally are not an issue for contract law. But when a man gives a woman an engagement ring, we claim it is not executed but "conditional." A ring is given in contemplation of marriage, and if she doesn't marry him she must give the ring back. Not the law with any other gifts.

(2) In a case I have the students read, a wife was about to leave her husband and he asked her to stay and take care of him (he didn't want to go to a nursing home in his old age). He promised if she did that, he would leave her some money/property not part of the marital estate. She did. He did not (gave it to his daughter (her stepdaughter) who wasn't anywhere to be found when he needed care!) The court said a woman is "expected to clean her husband's bedpans" that is part of the marital contract. She therefore had nothing to offer up as consideration for his promise.

This case sounds like another I'd like to add to my list. Can you send me a citation (I read french).


Naomi Norberg said...

Thanks, Majorie. I'll see what I can dig up.

Naomi Norberg said...

For those who have access, the decision has been reported in the Recueil Dalloz, 22 mai 2008.