French woman wins ECHR case over sex denial in divorce judgment

The case sparked a debate about attitudes to marriage consent and women’s rights in France. Lilia Mhissen, HW’s lawyer, said the decision dismantled the outdated concept of “marital obligation” and called on French courts to come in line with modern views on consent and equality.

Women’s rights groups that support HW say French judges continue to impose an “archaic vision of marriage,” which perpetuates harmful stereotypes.

HW, who lives in Le Chesnay near Paris, married her husband, JC, in 1984. They have four children, including a daughter with a disability that requires constant care, a HW is responsible.

Their marital relationship deteriorated after the birth of their first child and by 1992, HW began to experience health problems. In 2002, her husband began abusing her physically and verbally. Two years later, he stopped having sex with her and filed for divorce in 2012.

The woman did not object to the divorce, which was also requested, but objected to the reasons granted.

In 2019, an appeals court in Versailles rejected her complaint and ruled against her husband. The Court of Cassation, the highest court of France, later dismissed his appeal without explanation. He then took his case to the ECHR in 2021.

The ECHR ruled that the government should only intervene in matters such as sexuality for serious reasons. It states that the concept of “marital duty” in French law ignores the importance of consent in sexual relations.

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

The decision comes amid concerns over consent in France, following the high-profile trial of Dominique Pélicot, who drugged his wife and invited men to rape her. Pélicot and 50 men involved were convicted last month, and the case has raised concerns about how French law treats consent.

Feminist groups argue that the decision of the ECHR reinforces the need to update French law 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the concept of non-consent in the legal definition of rape, stating that consent must be freely given and can be withdrawn at any time.