A woman who refuses to have sex with her husband should not be considered “at fault” by courts in the event of divorce, Europe’s highest human rights court has said, condemning France.
The European court of human rights (ECHR) sided on Thursday with a 69-year-old French woman whose husband had obtained a divorce on the grounds that she was the only person at fault because she had stopped having sexual relations with him.
The ECHR held, unanimously, that there had been a violation of the woman’s right to respect for private and family life as part of the European convention on human rights.
It ruled against France, saying a woman who refuses to have sex with her husband should not be considered “at fault” by courts in the event of divorce.
The court identified the woman only by the initials HW, saying she lived in Le Chesnay in the western suburbs of Paris. The woman did not contest the divorce, which she had also sought, but rather complained about the grounds on which it had been granted by a French court.
The Strasbourg-based ECHR said any concept of marital duties needed to take into account “consent” as the basis for sexual relations.
“The court concluded that the very existence of such a marital obligation ran counter to sexual freedom, [and] the right to bodily autonomy,” a court statement said. “The applicant’s husband could have petitioned for divorce, submitting the irretrievable breakdown of the marriage as the principal ground, and not, as he had done, as an alternative ground.”
The ECHR decided domestic courts had not struck a fair balance between the competing interests at stake.
The woman and her husband, JC, married in 1984 and had four children, including a disabled daughter who needed the constant presence of a parent, a role her mother had taken on.
Relations between husband and wife deteriorated when their first child was born. The woman began experiencing health problems in 1992.
In 2002, her husband began abusing her physically and verbally, the court said. In 2004, she stopped having sex with him and in 2012 petitioned for divorce.
In 2019, an appeals court in Versailles dismissed the woman’s complaints and sided with her husband, while the court of cassation dismissed her attempt to appeal without giving specific reasons.
She took the case to the ECHR in 2021.
Her case has been supported by two women’s rights groups in France: the Fondation des Femmes (Women’s Foundation) and Collectif féministe contre le viol (Feminist Collective against Rape).
In a joint statement when the case was brought in 2021, the two groups said: “Marriage is not and must not be sexual servitude.”
They said that French judges continued to impose their own “archaic vision of marriage” even though there was no longer an obligation of “marital duty” under French law, and no law obliged spouses to have sexual relations.
The groups said it was crucial that French judges did not impose on women – directly or indirectly – an obligation to have sexual relations. They said if judges let an idea continue in society that there was some form of “marital duty”, this could provide a means of intimidation for sexual attackers or rapists inside relationships when in fact marital rape is a crime in France.
Agence France-Presse contributed to this report
