French woman wins ECHR case over refusal of sex in divorce ruling

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

The European Court of Human Rights (ECHR) sided with the 69-year-old on Thursday, saying courts should not consider a refusal to engage in sexual relations as grounds for fault in divorce.

The unanimous decision found that France had violated her right to respect for private and family life under European human rights law – ending a legal dispute which has dragged on for almost a decade.

The French woman, identified as Ms H.W, celebrated the decision as a step forward in ending “rape culture” and promoting consent within marriage.

The case has sparked a debate about attitudes toward marital consent and women’s rights in France. Lilia Mhissen, H.W.’s lawyer, said the decision dismantled the outdated concept of “marital duty” and called for French courts to align with modern views on consent and equality.

Women’s rights groups supporting H.W. said French judges continue to impose an “archaic vision of marriage,” which perpetuates harmful stereotypes.

H.W., who lives in Le Chesnay near Paris, married her husband, JC, in 1984. They had four children, including a daughter with a disability who required constant care, a responsibility H.W. took on.

Their marital relations deteriorated after the birth of their first child and by 1992, H.W. began experiencing health problems. In 2002, her husband started physically and verbally abusing her. Two years later, she stopped having sex with him and petitioned for divorce in 2012.

The woman did not dispute the divorce, which she had also requested, but objected to the grounds on which it was granted.

In 2019, an appeals court in Versailles rejected her complaints and ruled in favour of her husband. The Court of Cassation, France’s highest court, later dismissed her appeal without explanation. She then brought her case to the ECHR in 2021.

The ECHR ruled that governments should only intervene in matters like sexuality for very serious reasons. It stated that the idea of “marital duties” in French law ignored the importance of consent in sexual relations.

The court emphasised that agreeing to marry does not mean agreeing to have sex in the future. Suggesting otherwise, the ruling said, would effectively deny that marital rape is a serious crime.

The ruling 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 raised concerns about how French law addresses consent.

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

A recent report by French MPs has recommended including the concept of non-consent in the legal definition of rape, stating that consent must be freely given and can be withdrawn at any time.