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" ({{lang|fr|devoir conjugal}}) as grounds for fault.
Legal background
{{See also|Séparation de corps et d'habitation|Loi autorisant le divorce en France|Marriage in the Catholic Church|Rape in France}}
The concept of "marital duty" ({{lang|fr|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.{{cite news |last=Gabel |first=Barbara |title=Le "devoir conjugal", une notion archaïque du Code civil français invalidé par la CEDH |trans-title='Marital duty', an archaic notion of the French Civil Code invalidated by the ECHR |url=https://www.france24.com/fr/france/20250124-le-devoir-conjugal-une-notion-archa%C3%AFque-du-code-civil-fran%C3%A7ais-invalid%C3%A9-par-la-cedh |work=France 24 |date=24 January 2025 |language=fr}}
This began to be criticised with the advent of the feminist movement in France. In 1990, Court of Cassation, France's highest court, authorised prosecution of spouses for rape or sexual assault (marital rape).{{Cite book | publisher = Lexington Books | isbn = 978-0-7391-0248-0 | last = Simon | first = Rita James | title = A comparative perspective on major social problems | date = May 2001 | page = 20 }}
French court ruling
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.{{cite news |last=Hagan |first=Rachel |title=French woman wins ECHR case over refusal of sex in divorce ruling |url=https://www.bbc.com/news/articles/cdxel6zkwwxo |access-date=25 January 2025 |work=BBC News |date=23 January 2025}}{{cite news |last1=Restrepo |first1=Manuela López |title=French woman who refused sex with husband not to blame for divorce, rights court says |url=https://www.npr.org/2025/01/24/nx-s1-5273658/french-woman-divorce-fault-human-rights |work=NPR |date=24 January 2025}}
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 ({{lang|fr|relations intimes}}) with her husband" was a "fault".{{cite news |last1=Brioulet |first1=Cyril |title="Devoir conjugal" : une femme refuse des rapports sexuels à son mari, la justice prononce un divorce pour faute, la France condamnée |trans-title='Marital duty': a woman refuses sexual relations with her husband, the court grants a divorce for fault, France condemned|url=https://www.ladepeche.fr/2025/01/23/une-femme-de-69-ans-refuse-des-rapports-sexuels-a-son-mari-la-justice-prononce-un-divorce-pour-faute-la-france-condamnee-12464672.php |access-date=26 January 2025 |work=La Dépêche |date=23 January 2025 |language=fr}} The Court of Cassation dismissed her appeal.
ECtHR ruling
H.W. brought the case to the European Court of Human Rights (ECtHR) in 2021. 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. The Court said that "any non-consensual sexual act constitutes a form of sexual violence"{{cite news |last=Uguen |first=Lola |title=Divorce pour manquement au « devoir conjugal » : pourquoi la condamnation de la France est un tournant |trans-title=Divorce for breach of 'marital duty': why France's condemnation is a turning point |url=https://www.elle.fr/Societe/News/Divorce-pour-manquement-au-devoir-conjugal-pourquoi-la-condamnation-de-la-France-est-un-tournant-4304431 |access-date=26 January 2025 |work=Elle France |date=23 January 2025 |language=fr}} 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".{{cite news |last1=Petrequin |first1=Samuel |title=Top European rights court rules woman's refusal to have sex not a fault in divorce case |url=https://apnews.com/article/france-divorce-marital-sex-ruling-c8def534fc38eff2fe5e698589f8c184 |access-date=25 January 2025 |work=AP News |date=23 January 2025}} 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.{{cite web |title=HUDOC - European Court of Human Rights |url=https://hudoc.echr.coe.int/fre?i=001-240199#{%22itemid%22:[%22001-240199%22]} |website=European Convention on Human Rights|lang=fr}}
Response
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."{{cite news |title=French woman who stopped having sex with husband wins ruling at European court |url=https://www.reuters.com/world/europe/french-divorcee-who-stopped-having-sex-with-husband-wins-appeal-european-court-2025-01-23/ |access-date=25 January 2025 |work=Reuters |date=23 January 2025}} Mhissen said that the ruling would stop French judges from making similar rulings where the refusal of sexual relations is considered grounds of divorce. 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. The French feminist groups {{ill|Fondation des Femmes|fr|Fondation des femmes}} and {{ill|Collectif Féministe Contre le Viol|fr|Collectif féministe contre le viol}} 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".{{cite news |last1=Chrisafis |first1=Angelique |title=Woman who refuses sex is not 'at fault' in divorce in France, court rules |url=https://www.theguardian.com/world/2025/jan/23/woman-refuses-sex-not-at-fault-divorce-france-rules-top-eu-court |access-date=25 January 2025 |work=The Guardian |date=23 January 2025}}