“To sleep, perchance to dream — ay, there’s the rub.” Shakespeare meant, with Hamlet’s famous soliloquy, for his character to contemplate his own death, a different sort of sleep than the one we enjoy nightly. A third meaning of sleep exists, however, besides a little shuteye or a grim demise. If your wife is no longer sleeping — having sex — with you, what can you do?
Constructive Desertion, Defined
Virginia has a concept known as “constructive desertion,” which is when one spouse leaves the marriage but not the home. Your wife, on withholding sex from you (and other acts, to be explained below), is constructively deserting the marriage, so you can file for a fault divorce — it is her fault your marriage failed.
What are a Wife’s Marital Duties?
What were euphemistically called “hygiene” books in the 1920s often tried to prepare young women for married life by referring to their “marital duties.” Seldom did these books leap right to sex.
They instead spun out chapter upon chapter of going about at-home tasks while their manly men went off to win the bread, with talk of sewing children’s suits, pressing collars, scheduling the iceman, making crown roasts, and so on.
After some dozen or so mind-numbing chapters of such minutiae, a brief discourse appeared on, essentially, lying down in the dark and moving as little as possible. For many a Virginia lass, this was about all the sex education she got. (A brief video version of a typical book’s contents is also available for the 21st century attention span.)
Jamison v. Jamison
Virginia law, however, is much more particular about what marital duties are. In 1987’s Jamison v. Jamison the court found for the bedraggled husband, Robert E. Jamison, because of the deliberate actions of his wife, Mary L. Jamison, who chose to sleep on a mattress on the floor in her adult children’s bedroom rather than with Robert:
“Beginning in 1979, she denied her husband all sexual privileges, keeping her bedroom door locked at night.”
This by itself does not provide grounds for her desertion, but sadly for James, Mary provided plenty of additional reasons, like she was icing his little cow pie of a life with a dollop of manure for good measure:
- She refused to get a job to help with the family’s financial difficulties
- She refused to cook or clean for him
- She refused to share meals she made for her adult children with him
- She unplugged the television if he was watching
Mary was a real gem. We don’t normally quote entire passages from Virginia court rulings, but this one is simply irresistible:
“The commissioner found that Mrs. Jamison withdrew from all of the marital duties because of anger over her husband’s financial affairs, but that she did nothing to help resolve them. The commissioner found that the parties literally could not tolerate each other.”
The commissioner in chancery found that Mary was the type of woman that Virginians talk about by starting their sentences with, “Mary, bless her heart, is a …” The wording of the verdict suggests the commissioner was also grateful not to be in either of their shoes (or bed), but he did draw on solid legal precedent, a 1922 divorce case.
Setting the Precedent: Chandler v. Chandler, 132 Va. 418, 112 S.E. 856 (1922)
We are lawyers; we love such elegant, succinct legal citations. Most folks, though, have no idea what that all means. In 1922 the Virginia Supreme Court ruled in a divorce case, Chandler v. Chandler, that one spouse’s willful refusal of “the privilege of sexual intercourse” for no other reason than spite and anger constitutes willful desertion, even if the two married people continue to live under the same roof. The caveat is that the denying spouse must also refuse “other marital duties” so as to destroy the serenity of the home life and to render the marriage intolerable.
The Court’s escape clause is “without just cause or excuse,” meaning if she denies you the privilege of sex because, say, she broke her leg, you cannot divorce her. Same if you are in an emasculating car accident, or have genital warts, or work three jobs and only see her on weekends when she is exhausted after caring for your nine kids all week.
What Does Cohabitate Mean?
To cohabitate means to live together. Roommates cohabitate. College dorms are full of cohabitating students. Zoo animals cohabitate. Matrimonial cohabitation, however, is a different kind of living altogether. The presumption in Virginia law is that people marry so they can have legal sex together. In 1986’s Petachenko v. Petachenko, Virginia’s Supreme Court found that “‘matrimonial cohabitation’ consists of more than sexual relations. It also imports the continuing condition of living together and carrying out the mutual responsibilities of the marital relationship.”
If your wife refuses to “matrimonially cohabitate” with you, you can divorce her. You will have to air some dirty linen, perhaps, and admit to a level of sexual frustration and unpleasant home life you’d rather not discuss, but the brief embarrassment is better than a lifetime of pent-up … emotion, let’s say.
Your Next Step: Contact the Family Law Firm for Men Only
If you have made your bed and she won’t lie in it, contact The Firm for Men online, or call our Virginia Beach office at (757) 383-9184 to schedule a consultation and learn your rights. Our experienced family law attorneys have heard every possible marriage and divorce story. We make no judgments, we respect privacy, and we help our clients to — er —find relief. The legal kind. That’s all we meant.