The European Court of Human Rights (ECHR) ruled on Thursday that France violated Ms. H.W’s right to respect for private and family life, her right to sexual freedom and right to bodily autonomy by granting a divorce on the grounds that she failed to perform her ‘marital duty’ to have sexual relations with her husband.

The Court highlighted that consent to marriage cannot be implied as consent to future sexual relations, and the very existence of such a marital obligation interferes with Ms. H.W.’s right to respect for private life, her sexual freedom, and her right to bodily autonomy under Article 8 of the European Convention. Furthermore, the Court pointed out that such interference with private life does not align with France’s positive duty as a contracting state to prevent domestic and sexual violence under international law.

The Court held that the concept of “marital duties” disregards consent to sexual relations, especially considering the fact that pecuniary penalties and damages can be imposed for failure to perform such duties. For example, there was a case in 2011 where a man was ordered by the French court to pay 10,000 euros to his wife for having failed in his marital duties for several years. 

Even though the Court recognized that Article 8 is a qualified right that can be interfered with when it is related to the right of each spouse to terminate the marriage, in the present case, the Court found that the domestic courts failed to strike a balance between the competing interests at stake.

The applicant, Ms. H.W is a French national who was married to Mr J.C. for over 20 years, sharing four children. She brought the case to the ECHR in 2021 after the Court of Cassation in France rejected her appeal of a lower court’s decision to grant a divorce by attributing fault solely to her due to failure to perform ‘marital duties’, denying her defence on health grounds.

A joint statement published by two French feminist groups applauded the decision, highlighting the importance of abolishing the French legal concept of a “conjugal duty” to protect women from rape. The release noted that the aggressor is either the victim’s spouse or ex-spouse in 47 percent of the 95,000 registered rapes and attempted rapes in France each year.