Top European rights court rules woman’s refusal to have sex not a fault in divorce case

PARIS (AP) — The European Court of Human Rights (ECHR) sided Thursday with a French woman who had stopped having sex with her husband, saying she should not have been considered at fault on those grounds in their divorce.

The ruling concerned a fault-based case in which the blame was attributed solely to the applicant. Back in 2019, a French court of appeal ruled that her refusal to have sex was a breach of a marital duty and granted the couple a divorce to her detriment.

But the ECHR ruled that the French court was wrong, condemning France for a violation of the woman’s right to respect for private and family life.

“The Court considered that the reaffirmation of the principle of marital duties and the fact that the divorce had been granted on the grounds that the applicant had ceased all sexual relations with her husband amounted to interferences with her right to respect for private life, her sexual freedom and her right to bodily autonomy,” the court said in a news release.

The applicant, identified as H.W., is a French national who was born in 1955. She had started divorce proceedings against her husband on the grounds of fault, alleging that he had prioritized his career over family life and that he had been bad-tempered, violent and abusive. They had four children together.

The husband counterattacked, arguing that the divorce should be granted on the grounds of fault of the applicant alone.

He claimed that she had failed to fulfil her marital duties for several years and that she had breached the duty of mutual respect between spouses by making defamatory allegations.

After the Court of Appeal of Versailles granted the divorce and attributed fault solely on her, the plaintiff referred the case to the ECHR in 2021.

“In the Court’s view, consent to marriage could not imply consent to future sexual relations,” the Strasbourg-based court insisted. “Such an interpretation would be tantamount to denying that marital rape was reprehensible in nature. On the contrary, consent had to reflect a free willingness to engage in sexual relations at a given moment and in the specific circumstances.”

The ruling came a month after 51 men were convicted in France in a drugging-and-rape trial that riveted France and spurred debates on adding the notion of consent to French rape laws.

Samuel Petrequin, The Associated Press