Posted by Eugene Volokh:
"French Court Reverses Virgin Annulment":
http://volokh.com/archives/archive_2008_11_16-2008_11_22.shtml#1227017543
I blogged about the case [1]in June; an appeal court just reversed the
original decision [2]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.
References
1. http://volokh.com/posts/1212633977.shtml
2.
http://www.france24.com/en/20081117-france-lille-muslim-couple-annulment-overturned-virgin-marriage
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