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A French woman who stopped having sex with her husband has won the judgment of the highest court of human rights in Europe, and she should not be blamed for the divorce.
The European Court of Human Rights (ECHR) sided with the 69-year-old man on Thursday, saying that courts should not consider abstaining from sex as a fault in a divorce.
It ruled unanimously that France had violated the right to respect for private and family life under European human rights law, ending a legal battle that had dragged on for almost a decade.
The French woman, identified as Mrs HW, hailed the decision as a step forward in ending “rape culture” and promoting harmony within marriage.
The case has sparked a debate in France about attitudes to the marriage license and women’s rights. HW lawyer Lilia Mhissen said the decision dismantled the antiquated concept of “marital duty” and called for French courts to come in line with modern approaches to consent and equality.
Women’s rights groups backing HW say French judges continue to impose an “archaic view of marriage” that perpetuates harmful stereotypes.
HW, who lives in Le Chesnay near Paris, married her husband, JC, in 1984. They had four children, including a disabled daughter who needed constant care, which HW took on.
Their marital relationship deteriorated after the birth of their first child and by 1992, HW began to experience health problems. In 2002, her husband started physically and verbally abusing her. Two years later, she stopped having sex with him and filed for divorce in 2012.
The woman did not challenge the divorce, as she also requested it, but she refused the accepted reasons.
In 2019, an appeals court in Versailles rejected her complaints and ruled in favor of her husband. The Court of Cassation, France’s highest court, rejected his appeal without explanation. He then submitted his case to the ECHR in 2021.
The ECHR ruled that governments should only intervene in matters such as sexuality for very serious reasons. It said that the idea of ”marital obligations” in French law ignored the importance of consent in sexual relations.
The court pointed out that agreeing to marry does not mean agreeing to have sex in the future. To suggest otherwise, the judgment says, would be to deny that marital rape is a serious crime.
The verdict comes with increasing attention to consensus in France, following the infamous 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 treats consent.
Feminist groups say the ECHR decision reinforces the need to update French law and cultural attitudes.
A recent report by French parliamentarians recommended that the concept of non-consent be included in the legal definition of rape, stating that consent must be freely given and can be withdrawn at any time.
