Sometimes, people wish to marry but do not want to fulfill all their obligations of marriage. In some cases, fidelity in marriage is something people want to get rid of. From time to time, people want to agree sexual freedom in a marriage contract, but what is the legal situation?
Free love and marriage – a contradiction?
The rights and obligations in marriage are regulated by law. The law states that you are obliged to live together in a comprehensive marital partnership, especially to live together, as well as to be faithful, to be kind and to support each other. Many things can be “agreed” as a married couple by mutual consent. However, it should not be possible to undermine basic elements of marriage in a legally binding manner. There is also a relatively persistent rumor that a registered partnership is a kind of “marriage light” in which fidelity is no longer an obligation. But this is not true. A registered partnership is not a marriage light. Anyone who is afraid of the legal effects of marriage should essentially not enter into a registered partnership.
It is true that the law on registered partnerships does not explicitly stipulate the obligation of fidelity. However, it does stipulate a comprehensive relationship of trust, which is quite similar. Moreover, spouses are not only obliged to be faithful. They must also refrain from doing anything that could give the impression that they are being unfaithful. The duty of fidelity in marriage is not just about sex. It even refers to everything that can disturb the relationship of trust between the partners.
Even if infidelity is no longer an absolute ground for divorce, it is still a serious marital offense. If you can prove that your partner “cheated” and the marriage broke down as a result, you may be able to win divorce proceedings. Winning divorce proceedings can in return mean that you may receive maintenance from your ex-partner even after the marriage.
What if you “agree” to an open marriage?
Sexual freedom is not legally binding. What exactly does that mean? Suppose a couple agrees, in writing for reasons of proof, that they may have extramarital affairs. For the period in which both agree to this regulation, no marital misconduct can be derived from extramarital contacts. For example, if a couple agrees in January that it is okay to exchange affection with third parties and the husband tells the wife in June that this arrangement is not (or no longer) suitable for him, extramarital contact by the wife between January and June does not constitute marital misconduct. However, if, contrary to her husband’s wishes, she does not return to a monogamous relationship and continues to have extramarital affairs, this behavior will again constitute marital misconduct from July onwards.
In other words, as long as the agreement suits both of you, you will not win any divorce proceedings with claiming extramarital contact. However, it is not possible to stick to an agreement on sexual freedom if one party no longer wants it. This sexual freedom cannot be made binding by means of a marriage contract either. This is not legally possible because the duty of fidelity is an essential element of marriage.
Right to sexual self-determination in marriage and is there a right to sex in marriage?
The right to sexual self-determination also exists in marriage. Nevertheless, even today divorce proceedings still regularly include the accusation that the other party has denied marital intimacy for a long time without good reason. What is this all about? It is not the case that there is a fixed obligation to have sex in marriage or that one has a right to a certain frequency of marital intimacy. In Austria, it would also be neither possible nor sensible to regulate such an obligation by means of a marriage contract, as is sometimes done in the USA. However, according to case law, if a person “persistently and without reason” refuses to have sexual intercourse, this may constitute marital misconduct.
The situation is different, of course, if there is a reason for refusing intimacy. According to case law, valid reasons for refusal could be, for example, mental or physical illness. Or even if the partner cheats (several times), neglects their own personal hygiene or causes offense. If a spouse refuses sexual intercourse from time to time, this does not constitute marital misconduct.
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