20/09/2011 07:13 BST | Updated 19/11/2011 05:12 GMT

Happy Hour?

For longer than anyone can remember, the affluent Frenchman has reputedly enjoyed what is known as cinq à sept; the five-to-seven pm liaison with his mistress before returning home to dinner with his wife and family. Not so much 'afternoon delight', more happy hour. Well, two hours (one must factor in travelling time, I suppose).

Cinq à sept was regarded as a way for said affluent Frenchman to, er, enjoy himself without having to bother his wife with anything as dull as marital sex, particularly if the marriage was made on the basis of money or the joining of dynastic families. All parties were apparently content with this arrangement.

To paraphrase Bob Dylan, it seems the times they are a-changing. My Huffington Post colleague Dr Yvonne K. Fulbright recently blogged on a French divorce case where a judge in Nice fined a 51-year-old man £8,500 for not having sex with his now ex-wife. The judge's decision was based on French civil code article 215, which holds that married couples must agree to a "shared communal life." In the judge's eyes, this means: "sexual relations must form part of a marriage".

Dr Fulbright has already expertly covered the emotional and sexual implications of this ruling, so I am going to look at the legal aspects and consider whether such a ruling might ever be made in the UK. In short, it's possible but on rather a different legal premise.

As the concept of human rights has, thankfully, developed, the belief of a marital right to sexual intercourse has been widely discredited. There was a time when the rights of either spouse of a marriage included the right to the other's consortium (company), cohabitation (sexual intercourse) and maintenance during the marriage. The old action for restitution of conjugal rights was abolished in 1971. However, it was not until December 1993 when the United Nations High Commissioner for Human Rights published the Declaration on the Elimination of Violence Against Women - establishing marital rape as a human rights violation.

But what do we do when one spouse refuses to have sex with the other? I state with absolute confidence that 99% of the divorce petitions I draft features sex, or the lack of it, in the breakdown of the marriages concerned. We UK lawyers however are more likely to put forward a conduct argument than the right to a "shared communal life" as described by the judge in Nice. If a spouse has explicitly expressed the desire for sex within marriage, for the husband or wife to deliberately withhold sex from their spouse may be viewed by a court of law as a form of emotional abuse.

Consider the man whose wife refuses, for no apparent reason, to have sex with her husband. He may well suffer huge loss of self esteem, mental health problems brought on by the rejection, and a massive loss of confidence resulting in his losing his job. This would provide a wholly credible conduct argument.

Two years ago I handled the divorce case of a woman whose husband had sexually abused their children. Because the family unit was effectively destroyed, the woman was unable to work full-time as her children needed stability and a loving, protective parent there for them as much as possible. Yes, it's an extreme example but nonetheless technically, one can, and I did, raise it as a conduct argument when petitioning for divorce.

These are dangerous waters to navigate for any divorce solicitor and one can quite see how the tradition of cinq à sept developed. If all parties are agreeable, even if they don't implicitly acknowledge the terms of their marriage/relationship, then husband and mistress, wife and lover, might argue that such an 'arrangement' satisfies all concerned.

The problem comes when one party is dissatisfied. We don't know exactly what happened in the case of the French divorce - the husband claimed health problems and tiredness for his lack of libido - but rest-assured, sex, or lack of it, is the commonest cause for the breakdown of marriage.