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H.W. v. France

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On 23 January 2025, the European Court of Human Rights (ECtHR) ruled in H.W. v. France that a French woman was not at fault for her divorce due to not engaging in sexual relations with her husband during their marriage. The ruling overturned a French court decision that deemed her failure to fulfil "marital duties" (devoir conjugal) as grounds for fault.

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The concept of "marital duty" (devoir conjugal) in French law has its origins in Catholic canon law which viewed marriage as a framework for sexual reproduction, meaning sexual intercourse between husband and wife was seen as obligatory. Article 215 of the Napoleonic Code (1804) says that "spouses mutually oblige themselves to a community of life". While the law does not explicitly mandate sexual relations, judges have interpreted it as such.[1]

This began to be criticised with the advent of the feminist movement in France.[1] In 1990, Court of Cassation, France's highest court, authorised prosecution of spouses for rape or sexual assault (marital rape).[2]

French court ruling

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H.W., a 69-year-old French woman, married J.C. in 1984. In 2002, her husband became physically abusive after she became ill. By 2004, they ceased sexual relations.[3][4]

In 2012, they filed for divorce, which was granted. While H.W. wanted a no-fault divorce, J.C. argued H.W. was at fault for not performing her "marital duties". In 2018, a family court judge in Versailles ruled that H.W.'s health problems justified the absence of sexual relations; this was overturned by the Versailles Court of Appeal who said that H.W.'s refusal to have "intimate relations (relations intimes) with her husband" was a "fault".[5] The Court of Cassation dismissed her appeal.[3]

ECtHR ruling

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H.W. brought the case to the European Court of Human Rights (ECtHR) in 2021.[3] On 23 January 2025, the ECtHR unanimously ruled that France violated H.W.'s right to respect for private and family life under Article 8 of the European Convention on Human Rights.[5] The Court said that "any non-consensual sexual act constitutes a form of sexual violence"[6] and emphasised that "consent to marriage could not imply consent to future sexual relations. Such an interpretation would be tantamount to denying that marital rape was reprehensible in nature".[7] It further said that the concept of "marital duties" as interpreted by French courts was incompatible with modern understandings of consent, bodily autonomy and sexual freedom.[3][8]

Response

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Lilia Mhissen, H.W's lawyer, said following the ruling: "I hope this decision will mark a turning point in the fight for women's rights in France. It is now imperative that France [...] takes concrete measures to eradicate this rape culture and promote a true culture of consent and mutual respect."[9] Mhissen said that the ruling would stop French judges from making similar rulings where the refusal of sexual relations is considered grounds of divorce.[9] The ruling came during a period of heightened debate in France about sexual consent, especially following high-profile cases like that of Gisèle Pelicot, where her husband and others were was convicted of drugging and raping her.[3] The French feminist groups Fondation des Femmes [fr] and Collectif Féministe Contre le Viol [fr] highlighted the need for legal changes to reflect contemporary understandings of consent and autonomy. They celebrated the ruling as a victory for women's rights, pushing for legislative changes to ensure that marriage does not require "sexual servitude".[10]

See also

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References

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  1. ^ a b Gabel, Barbara (24 January 2025). "Le "devoir conjugal", une notion archaïque du Code civil français invalidé par la CEDH" ['Marital duty', an archaic notion of the French Civil Code invalidated by the ECHR]. France 24 (in French).
  2. ^ Simon, Rita James (May 2001). A comparative perspective on major social problems. Lexington Books. p. 20. ISBN 978-0-7391-0248-0.
  3. ^ a b c d e Hagan, Rachel (23 January 2025). "French woman wins ECHR case over refusal of sex in divorce ruling". BBC News. Retrieved 25 January 2025.
  4. ^ Restrepo, Manuela López (24 January 2025). "French woman who refused sex with husband not to blame for divorce, rights court says". NPR.
  5. ^ a b Brioulet, Cyril (23 January 2025). ""Devoir conjugal" : une femme refuse des rapports sexuels à son mari, la justice prononce un divorce pour faute, la France condamnée" ['Marital duty': a woman refuses sexual relations with her husband, the court grants a divorce for fault, France condemned]. La Dépêche (in French). Retrieved 26 January 2025.
  6. ^ Uguen, Lola (23 January 2025). "Divorce pour manquement au « devoir conjugal » : pourquoi la condamnation de la France est un tournant" [Divorce for breach of 'marital duty': why France's condemnation is a turning point]. Elle France (in French). Retrieved 26 January 2025.
  7. ^ Petrequin, Samuel (23 January 2025). "Top European rights court rules woman's refusal to have sex not a fault in divorce case". AP News. Retrieved 25 January 2025.
  8. ^ "HUDOC - European Court of Human Rights". European Convention on Human Rights (in French).
  9. ^ a b "French woman who stopped having sex with husband wins ruling at European court". Reuters. 23 January 2025. Retrieved 25 January 2025.
  10. ^ Chrisafis, Angelique (23 January 2025). "Woman who refuses sex is not 'at fault' in divorce in France, court rules". The Guardian. Retrieved 25 January 2025.