Groundbreaking Ruling on Marital Consent in French Divorce Case

A woman’s marriage had been in decline for decades, marked by health issues and threats of violence. Upon filing for divorce, however, French courts declared her at fault for refusing to engage in sexual relations with her husband.

This case sparked a significant debate about the perception of consent and women’s rights in France, with advocates emphasizing the urgent need for legal reforms addressing nonconsensual sex within marriage.

Historic Court Victory

Recently, a 69-year-old French woman, referred to as H.W., achieved a landmark victory in the European Court of Human Rights. The court unanimously ruled in her favor, asserting that a refusal to participate in sexual relations should not be grounds for fault in divorce proceedings.

The ruling highlighted that an imposed marital obligation infringed upon sexual freedom and the fundamental right to bodily autonomy, further underscoring the government’s duty to address issues of sexual and domestic violence.

H.W.’s Journey and Divorce Case

H.W. married her husband in 1984 and they had four children together. After ceasing sexual relations, she sought a divorce in 2012. In 2019, a French appeals court in Versailles ruled that her refusal to have sex established her sole fault in the divorce. When she appealed to France’s highest court, the Court of Cassation, her request was dismissed without explanation.

Under French law, “divorce pour faute”—a fault-based divorce—allows the wronged party to seek damages from the allegedly at-fault spouse. H.W.’s case dragged on for over a decade as subsequent French courts upheld the initial ruling. Exhausting local legal options, she brought her appeal to the European Court of Human Rights in 2021, contending that the French courts’ decision represented an unjust intrusion into her private life and a violation of her physical integrity.

The Role of the European Court of Human Rights

Based in Strasbourg, the European Court of Human Rights addresses human rights violations across 46 member states of the Council of Europe. In its ruling, the court found no valid justification for state interference in personal sexual matters, stressing that the concept of “marital duties” neglects the crucial issue of consent.

A Voice for Women’s Rights

Upon winning her appeal, H.W. stated, “This victory is for all women who, like me, face unjust and aberrant judicial decisions that threaten their bodily integrity and privacy rights.”

H.W.’s attorney, Lilia Mhissen, hailed the outcome, expressing hope that it would signify a turning point for women’s rights in France, stating, “This decision abolishes the archaic perception of marital duties.” She urged the French government to implement measures that eliminate rape culture and foster a genuine culture of consent and respect.

Calls for Change in French Law

French Justice Minister Gerald Darmanin acknowledged the ruling, asserting the need for legal adaptation in response to the evolving societal norms and perspectives. The case has reinvigorated discussions surrounding previous landmark cases in France—including that of Gisèle Pelicot, who suffered grave injustices—prompting calls for urgent legal reform surrounding consent in sexual relations.

Women’s rights advocates, like Anne-Cécile Mailfert, President of the Women’s Foundation, welcomed the ruling but stressed that much work lies ahead to ensure women’s liberation and bodily autonomy. French Equality Minister Aurore Bergé celebrated the decision, affirming, “No woman belongs to her husband. Women are free—free to choose whether to engage in sexual relationships.”