The European Court of Human Rights (ECHR) has ruled that the principle of marital “conjugal duty”, as applied in the French Civil Code, violated the court’s Article 8 – the right to respect for private and family life.
On January 23, the Strasbourg-based ECHR stated in a case involving a woman who refused to have sex with her husband, that she should not be considered “at fault” in her divorce.
“The Court cannot accept, as the [French] Government suggests, that consent to marriage entails consent to future sexual relations,” the judges said in their summation.
“The Court concluded that the very existence of such a marital obligation ran counter to sexual freedom, the right to bodily autonomy and the Contracting States’ positive obligation of prevention in the context of combating domestic and sexual violence,” the ECHR said in a press release.
“Such an interpretation would be tantamount to denying that marital rape was reprehensible in nature.”
It highlighted that “any non-consensual sexual act constitutes a form of sexual violence”.
The ruling related to a divorce case where a 69-year-old woman had refused to have sex with her husband for eight years. The ECHR stated that, unlike French law, her husband’s request for a divorce for “fault” was illegitimate.
The woman argued that the full-time caretaking of her disabled daughter and her own serious health problems led to this. She also alleged that her refusal to have sex had led to verbal and physical violence from her partner.
The couple had been married since 1984 and had four children.
On April 2012, the woman filed for divorce and on January 2013, a French court granted the couple leave to initiate divorce proceedings and ordered interim measures.
On July 19, 2015 the applicant brought divorce proceedings against her husband on grounds of “fault”. She alleged he had prioritised his professional career over family life and that he had been bad-tempered, violent and insulting.
He then counterclaimed, arguing that the divorce should be granted solely on the applicant’s fault, claiming she had failed to fulfil marital duties for some years and breached mutual respect by making slanderous accusations.
Alternatively, he sought divorce on the grounds of “irretrievable breakdown” of the marriage.
French courts ultimately granted the divorce, attributing fault solely to the applicant, citing her persistent refusal to have sexual relations with her husband — without health justification — as a “serious and repeated breach of marital duties”, thus rendering the marriage “unsustainable”.
The ECHR found no justification for the public authorities’ interference regarding the applicant’s sex life.
It noted the husband could have petitioned for divorce solely on the grounds of irretrievable breakdown rather than citing the applicant’s exclusive fault.
The ECHR concluded that emphasising marital duties and granting a divorce on that basis lacked sufficient justification and failed to balance competing interests fairly.
It further observed that, given the interference concerned one of the most intimate aspects of private life, the Contracting States had what it termed a “narrow margin of appreciation”. Only exceptionally serious reasons could justify such interference by public authorities in matters of sexuality, it said.
Perhaps ironically, conjugal duty has gradually eroded under French civil law. It was introduced in 1804 but has since apparently became less relevant.
In 1990, the right to refuse sex to one’s spouse was introduced into the French judicial system, as was the concept of marital rape if the partner enforced intercourse.
Still, the concept of conjugal duty remained in existence in case law.
France’s civil justice system has sometimes continued to rely on an interpretation of Article 242 of the Civil Code to punish an abstinent partner, in the name of the “serious or renewed violation of the duties and obligations of marriage that make living together intolerable”.
On occasion, judges have recognised decisions to divorce, including hefty damages, solely based on the long-time absence of sexual relations.
Now, the ECHR appeared to have closed that door.
“I hope that this decision will mark a turning point in the fight for women’s rights in France,” the female plaintiff in the case said in a statement sent to French media by Lilia Mhissen, one of her lawyers.
Belgium has given sex workers full employment rights, including sick leave, maternity pay, and pensions. https://t.co/ijA9lo51i0
— Brussels Signal (@brusselssignal) December 2, 2024
