Europe’s highest court backs woman whose husband divorced her because she stopped having sex with him

Europe’s highest human rights court ruled Thursday in favor of a 69-year-old French woman whose husband was granted a divorce on the grounds that she had stopped having sex with him.

The European Court of Human Rights (ECHR) has ruled against France, saying a woman who refuses to have sex with her husband should not be considered “at fault” by the courts in the event of a divorce.

The Strasbourg court declared that France had violated Article 8 of the European Convention on Human Rights, relating to the right to respect for private and family life.

He said any conception of marital duties must take into account “consent” as the basis of sexual relations.

“In the Court’s view, consent to marriage cannot imply consent to future sexual relations,” the Court said in a press release. “Such an interpretation would amount to denying that marital rape is wrongful. On the contrary, consent must reflect a free will to have sexual relations at a given time and in particular circumstances.”

The decision came from a panel of seven judges from seven different countries: Spain, France, Armenia, Monaco, San Marino, Czech Republic and Ukraine.

The mother of four, who wished to remain anonymous, welcomed the decision.

“I hope that this decision will mark a turning point in the fight for women’s rights in France,” she said in a statement. “This victory is for all women who, like me, find themselves confronted with aberrant and unjust court decisions that call into question their physical integrity and their right to privacy.”

This decision comes as French society debates the notion of consent.

Women’s rights advocates have said the notion of “consent” must be added to French law defining rape.

The woman was not complaining about the divorce, which she had also requested, but rather about the grounds on which it was granted, the court heard.

“Marriage is no longer sexual servitude”

The court identified her only as HW, saying she lives in Le Chesnay, a western suburb of Paris.

“The Court concluded that the very existence of such a marital obligation runs counter to sexual freedom (and) the right to bodily autonomy,” a court statement said.

“Any non-consensual act of a sexual nature constitutes a form of sexual violence,” the press release added.

The Strasbourg court ruled that the French courts had not found “a fair balance between the competing interests at stake”.

“The applicant’s husband could have filed for divorce citing the irretrievable breakdown of the marriage as the main reason and not, as he did, as an alternative reason,” the court ruled.

The woman and JC married in 1984 and had four children, including a disabled daughter who needed the constant presence of a parent, a role fulfilled by her mother.

Relations between husband and wife deteriorated after the birth of their first child. The woman began having health problems in 1992.

In 2002, her husband began physically and verbally abusing her, the court heard.

In 2004, she stopped having sex with him and filed for divorce in 2012.

In 2019, a Versailles appeals court rejected the woman’s complaints and ruled in favor of her husband, while the Court of Cassation rejected an appeal without giving specific reasons.

She turned to the ECHR, which serves as a court of last instance where all domestic legal avenues are exhausted, in 2021.

“It was impossible for me to accept it and leave it at that,” the woman said.

“The Court of Appeal’s decision convicting me was and still is unworthy of a civilized society because it denied me the right not to consent to sexual relations, depriving me of my freedom to make decisions regarding my body ” she said.

“It reinforced the right of my husband and all spouses to impose their will.”

Her case was supported by two rights groups, the Women’s Foundation and the Feminist Collective Against Rape.

Emmanuelle Piet, president of the Feminist Collective Against Rape, welcomed the court’s decision.

“Ms. W spent 15 years fighting this battle, and it ended in victory, well done,” she told the Reuters news agency. “When you are forced to have sex in marriage, it is rape.”

While French criminal justice abolished marital duty in 1990, “civil judges continue to impose it through an archaic vision of marriage”, they believe.

“From now on, marriage is no longer sexual servitude,” said Delphine Zoughebi, a member of the women’s defense team. “This decision is all the more fundamental as nearly one in two rapes is committed by a spouse or partner.”

The ECHR is part of the 46-member pan-European human rights body of the Council of Europe. It applies the European Convention on Human Rights and its decisions are legally binding and not advisory.