A brief history of sex contracts through the ages

Relationships, Divorce

Over time, most couples expect that life’s stressors—career, parenting, finances, and health issues—will take a toll in the bedroom. But the degree to which that happens, and the limits of what one party in the relationship may or may not accept, are increasingly open to negotiation.

In an effort to try and certify the sexual health of a relationship an increasing number of couples are using contracts to try and lock in some guarantees. As Avvo Stories recently reported, the latest twist in the prenuptial or postnuptial agreement is the “lifestyle” clause: contractually agreed-upon terms between partners governing such matters as weight or fitness requirements, mandated vacation time, ultimatums addressing infidelity or substance abuse—and guidelines about the frequency of sex.

Property agreements between couples are nothing new, and people have been making prenups for thousands of years. And while the concept of the lifestyle clause—including contracts proscribing sex—sounds decidedly modern, it actually traces back to those earliest accords.

Agreeing not to disagree

A notable example of the power—and extensive history—of the marriage contract is the case of Sakina Bint al-Hussein, the Prophet Mohammad’s great-granddaughter, who at least once stipulated in writing that her husband was forbidden to disagree with her about anything. After divorcing two husbands, she then demanded in a marriage contract absolute monogamy from the third—and even a stipulation forbidding him from approaching another woman. When her husband violated the cause, Sakina took him to court.

A marriage contract, or Katb el-Kitab, is in fact an integral part of an Islamic marriage. Essentially a prenuptial agreement, the Katb el-Kitab establishes binding responsibilities for both the bride and groom, and can include stipulations regarding the couple’s physical relationship. In fact, one of the most important purposes of the marriage contract is that it legalizes sexual intercourse between the partners.

The dowry and bride-price

The pot-sweetener of a dowry—the property or money brought by a bride to her husband on their marriage—goes back to ancient Mesopotamia. In a time when marriages were overwhelmingly arranged, Mesopotamian law further stipulated that marriages without pre-negotiated and signed marriage contracts (certified not by a couple in love but by family representatives) would be regarded as invalid.

Following the witnessing of the signed contract, a couple still had obligations to fulfill to achieve

a legitimate marriage, including payments of a dowry and bride-price to the respective families, a wedding ceremony and feast, the bride moving to her father-in-law’s home and sexual intercourse resulting in pregnancy. Should the bride prove not to be a virgin or unable to conceive, a husband could return her to her family—along with her dowry.

Ladies first

Another example over the millennia is the Hebrew marriage contract, called the ketubah, which is at least 2,000 years old. Originally, the contract was intended to protect women in case of divorce or widowhood by setting out the husband’s financial obligation to the wife; the agreement also made it expensive for a husband to divorce his wife, thus making marriages more stable.

The ketubah is also a contract stipulating the frequency of a married couple’s non-procreative sex—with the Talmudic interpretation of it as a wife’s right (not her husband’s), and that a man owes a woman sexual pleasure. Per a couple’s ketubah, any man in violation of abstaining from non-procreative intercourse would consequently face the nullification of his marriage contract, allowing a spouse to move forward with civil divorce proceedings or its Jewish equivalent, the “get.” That’s pretty progressive, even by today’s standards.

Yael Rosenstein, an Orthodox Jew from Chicago, says the Talmudic classes she and her husband took to help them prepare their ketubah “explicitly taught that I, as a woman, should expect sex according to the frequency I choose, that sex was holy and good, that it invited God and blessing into our marriage, and that if its frequency drops below a certain prescribed number, we should talk about it because that could be a sign something is wrong in our marriage: grudge holding or stress, or even health problems.”

Sex prenups and modern law

Snapping back to the present, while the law allows for a broad range of terms for a couple’s prenuptial or postnuptial agreement, the enforceability of those terms varies from state to state and by judicial discretion.

When it comes to adding “sex schedules” in his client’s prenups, Quincy, Massachusetts., family law attorney Gabriel Cheong advises that such clauses can be included, but not enforced.

“If a husband sued his wife for breach of contract for not abiding by the sex schedule, a judge will rule that provision invalid in the prenup,” notes Cheong. “This is because to condone it or to enforce it would mean that the Commonwealth of Massachusetts condones rape. You cannot force another person to have sex even if they’re your spouse and it’s not a right you can contract.”

Cheong adds that a severability clause in the agreement will protect it from invalidation. “In almost all prenuptial agreements and in most contracts, there is a severability clause put in which states that if some parts of the contract is ruled invalid, it does not invalidate the entire contract but instead, the invalid portion should be removed. If you do have some sort of sex schedule included in a prenuptial agreement, make sure it also contains a severability clause.”