According to the European Court of Human Rights, a woman who refuses sex to her husband cannot be considered “at fault” in the event of divorce. France has just been condemned.
This Thursday, January 23, 2025, the European Court of Human Rights (ECHR) condemned France regarding marital duty, finding that a woman who refuses sexual relations to her husband should not be considered by the courts as ” at fault.” This conclusion follows a decision by the Versailles Court of Appeal, in 2019, which validated the divorce request for fault of a husband whose wife had refused sexual relations with him for eight years.
“Any non-consensual sexual act constitutes a form of sexual violence (…) The Court cannot accept, as the government suggests, that consent to marriage entails consent to future sexual relations. Such a justification would be nature to remove marital rape from its reprehensible nature”, indicated the ECHR.
As a reminder, in this case, the family affairs judge of the Versailles high court initially ruled that the divorce could not be granted for fault. But in 2019, the Court of Appeal pronounced the divorce solely at fault of the 69-year-old woman. She then referred the matter to the ECHR, relying on Article 8 of the European Constitution on Human Rights, relating to the right to respect for private and family life. “I hope that this decision will mark a turning point in the fight for women’s rights in France,” she said in a statement. This position of the ECHR could, in the future, encourage France to modify its law on the notion of marital duty or at least to clarify it.
What French law says about marital duty
Marital duty has no longer appeared in French law since the creation of the Napoleonic Civil Code in 1804. In 1990, the courts even established a right to refuse sexual relations to one’s spouse. But in fact, it continues to rely on an interpretation of article 212 of the Civil Code which subjects spouses to an obligation of “fidelity” and article 215 which obliges spouses to a “community of life” . It also involves a community of roof and bed. “A legal aberration and an untenable paradox”, according to Me Sophie Soubiran, lawyer and member of the Women’s Foundation, in the columns of Libération.
According to article 222-2 paragraph 2 of the Penal Code, “rape and other sexual assaults are constituted […] whatever the nature of the relationship existing between the aggressor and his victim, including if they are united by the bonds of marriage”. Furthermore, since 1980, rape between spouses has been considered an aggravating circumstance, the penalty incurred can reach 20 years of criminal imprisonment.