French woman wins case before the ECHR for refusal of sexual relations in the context of a divorce decision

A French woman who stopped having sex with her husband has won a ruling from Europe’s top human rights court, which said she should not have been held responsible for their divorce.

The European Court of Human Rights (ECHR) ruled in favor of the 69-year-old man on Thursday, ruling that courts should not consider refusal to have sex as a ground for fault in a divorce.

The unanimous decision found that France had violated his right to respect for private and family life under European human rights law, ending a legal dispute that had lasted for almost a decade.

The French woman, identified as Ms HW, celebrated the decision as a step towards ending “rape culture” and promoting consent within marriage.

The case sparked a debate over attitudes towards marriage consent and women’s rights in France. Lilia Mhissen, HW’s lawyer, said the ruling dismantled the outdated concept of “conjugal duty” and called on French courts to align with modern understandings of consent and equality.

Women’s rights groups supporting HW said French judges continue to impose an “archaic vision of marriage” that perpetuates harmful stereotypes.

HW, who lives in Le Chesnay near Paris, married her husband, JC, in 1984. They had four children, including a disabled daughter who required constant care, a responsibility she took on.

Their marital relationship deteriorated after the birth of their first child, and in 1992 HW began to have health problems. In 2002, her husband began to physically and verbally abuse her. Two years later, she stopped having sex with him and filed for divorce in 2012.

The woman did not contest the divorce she had also requested, but disputed the grounds on which it was granted.

In 2019, a Versailles appeals court rejected her complaints and ruled in favor of her husband. The Court of Cassation, France’s highest court, then rejected his appeal without explanation. She then took her case to the ECHR in 2021.

The ECHR ruled that governments should only intervene in issues such as sexuality for very serious reasons. He said the notion of “matrimonial duties” in French law ignored the importance of consent in sexual relationships.

The court emphasized that agreeing to get married does not mean agreeing to have sexual relations in the future. To suggest otherwise, the decision said, would effectively deny that marital rape is a serious crime.

The move comes amid growing attention to consent in France, following the high-profile trial of Dominique Pélicot, who drugged his wife and invited men to rape her. Pélicot and the 50 men involved were convicted last month and the case has raised concerns about how French law deals with consent.

Feminist groups argue that the ECHR decision reinforces the need to update French laws and cultural attitudes.

A recent report by French parliamentarians recommends including the notion of non-consent in the legal definition of rape, specifying that consent must be freely given and can be withdrawn at any time.