Certain bodily infirmities which one of the conjoints has concealed from the other, or of which he was not himself aware, should also impair the validity of the marriage contract. Such are chronic infectious diseases, especially venereal, impotence in the man and sterility in the woman, when the cause was previously known. But here again, the law should only intervene at the request of the person injured, and to take certain measures to prevent the procreation of abortions, without interfering with sexual connection.
Adultery.—An important question is that of adultery. Here again, we are of opinion that the law has not performed its duty. Proved adultery, when fidelity has been promised by contract should give the injured party the right of immediate and absolute divorce.
Certain forms of adultery, which take place with the assent of the two conjoints, have in reality the character of bigamy and should neither be recognized by civil nor penal law. I will cite as an example, the case where two conjoints wish to live together for various reasons, while the impotence, disease or sterility of one of them induces him to concede to the other liberty of sexual connection with a third person, apart from marriage. In such a case neither society nor any one else is injured and all motive for legal intervention is wanting (vide André Couvreur: La Graine).
Divorce.—The question of divorce becomes extremely difficult when one of the conjoints wishes for it and the other does not, and when no other reason exists for determining the marriage. We are here concerned with the malicious caprices of the god of love, from which the world will never be free.
In my opinion, the law in such cases can only do one thing, and that is to protect the rights of the children, if there are any, and to compel the inconstant conjoint to provide for their nourishment.
The law should also protect the pecuniary and other civil rights of the conjoint who wishes to continue life in common. Here especially we can recognize the necessity for the separation of property. On the other hand, I am convinced that it is useless to maintain at any price a union which one party does not wish for. In practice no good results from it; it is rather a moral question than a question of law.
In such cases we may observe the despair of the conjoint who has remained faithful, both in the marital and legal relations of marriage. The law cannot do everything, and here it is powerless; all that it can do is to exact delay and attempt at reconciliation, which sometimes succeeds.
The Right to Satisfaction of the Sexual Appetite.—We now come to a delicate question. The right to satisfy the sexual appetite must necessarily be restricted in more than one respect if injury to third parties is to be avoided. If we except certain pathological cases, the chief difficulty lies in the fact that the normal sexual appetite can only be satisfied by the cohabitation of two persons, and that what satisfies the one may often injure or deeply wound the other, and even the children. The matter may go so far as to concern penal law, and we shall refer to it again in this connection. But, even from the point of view of civil law, permission to satisfy the sexual appetite must necessarily depend on the consent of both parties. In my opinion no exception to this rule can be tolerated.
It is not enough to protect minors; it is also necessary to prevent the abuse of the persons of adults against their will. The institution of so-called Christian marriage still contains barbarous dispositions in this respect, the wife being generally obliged to surrender herself to her lord and master as often as he pleases. This is the dark side of the picture which exacts sexual fidelity in man.
Inversely, for physiological reasons, a very erotic and sexually exacting woman cannot obtain satisfaction, man being incapable of commanding erections voluntarily. She can only bring an action for divorce if she can prove that her husband is completely impotent.