CEDH · CASELAW;CLIN;ENG — 23 janvier 2025

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France - 13805/21 Judgment 23.1.2025 [Section V] Article 8 Article 8-1 Respect for private life Fault-based divorce with blame attributed solely to applicant for failure to fulfil marital duties by refusing to have sexual relations with her husband: violation Facts – In July 2015 the applicant brought divorce proceedings against her husband on grounds of fault. She alleged that he had prioritised his professional career over their family life and had been bad-tempered, violent and insulting. Her husband counterclaimed, arguing that the divorce ought to be granted on grounds of fault by the applicant alone; among other claims, he alleged that for several years she had failed to fulfil her marital duties. In the alternative, he sought divorce on the grounds of the irretrievable breakdown of the marriage. In a judgment of July 2018, the family-affairs judge at the tribunal de grande instance , finding that none of the complaints raised by the couple had been substantiated and that divorce could not be pronounced on grounds of fault, granted it on the grounds of the irretrievable breakdown of the marriage. The applicant appealed against that judgment. In November 2019 the Court of Appeal granted the divorce, attributing fault solely to the applicant, on the grounds that she had acknowledged that she had not had sexual relations with her husband since 2004, a situation which constituted a serious and repeated breach of marital duties and obligations, making continued married life intolerable. The applicant’s appeal on points of law was dismissed in September 2020. Law – Article 8: (1) Existence of interferences – The reaffirmation of the principle of marital duties and the fact that a fault-based 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. While the domestic law admittedly now largely dissociated the financial consequences of divorce from possible fault on the part of the spouses, it remained the case that those provisions were particularly intrusive, in that they concerned one of the most intimate aspects of the individual’s private life. The Court of Appeal’s conclusions had been especially stigmatising, in that it had found the applicant’s refusal to have sexual relations to be a “serious and repeated” breach of marital obligations, making continued married life “intolerable”. (2) Justification for the interferences – (a) Foreseeable legal basis for the interferences – The divorce had been pronounced under the relevant Articles of the Civil Code, which provided that a fault-based divorce could be granted where evidence of a serious or repeated breach of marital duties and obligations was attributable to one of the spouses and this made continued married life intolerable. Under the Court of Cassation’s long-standing but consistent case-law, spouses were subject to marital duties and failure to fulfil them could constitute a fault justifying divorce. Although the Court of Cassation had not subsequently reaffirmed this case-law, there had been no departure from it, and it continued to be applied by the lower courts. The Court concluded that the interferences complained of had been based on well-established domestic case-law. The domestic case-law did not treat a refusal to engage in sexual relations as constituting a fault in every case. It was for the trial and appeal courts to determine whether the refusal in question was sufficient to constitute a serious or repeated breach of marital duties and obligations, justifying divorce. It recognised, moreover, that certain circumstances such as an individual’s age, state of health or the abusive or violent nature of the spouse could justify a failure to fulfil marital duties. The fact that the domestic law left it to the trial and appeal courts to assess whether a breach of marital obligations was sufficiently serious to justify divorce could not call into question its foreseeability. The Court considered that the case-law in issue had been formulated with sufficient precision to enable the applicant – if need be with appropriate advice – to regulate her conduct. In view of the foregoing, the Court found that the interferences complained of had been “provided by law”. (b) Legitimate aim – Noting that the domestic law guaranteed the right to divorce and that the dissolution of a marriage affected both spouses’ rights, the Court recognised that the purpose of the interferences complained of, which related to the right of each spouse to terminate the marriage, was linked to the “protection of the rights and freedoms of others” within the meaning of the Convention. (c) Necessity of the interferences – In so far as the interferences in question concerned one of the most intimate aspects of the applicant’s private life, the Court considered that the margin of appreciation afforded to the Contracting States was narrow. It reiterated that only particularly serious reasons could justify interferences on the part of the public authorities in the area of sexuality. On that point, the present case differed clearly from that of Babiarz v. Poland , in which none of the rights relied on by the spouses in their divorce proceedings had been of such a nature or had such significance. The concept of marital duties, as set out in the domestic legal order and reaffirmed in the present case, took no account whatsoever of consent to sexual relations, despite the fact that consent constituted a fundamental limitation on the exercise of the sexual freedom of others. In that connection, the Court reiterated that any non-consensual act of a sexual nature constituted a form of sexual violence. It had also consistently held, under Article 8 taken alone or in conjunction with Article 3, that the Contracting States had to put in place and implement an adequate legal framework affording protection against acts of violence by private individuals. Furthermore, obligations relating to the prevention of domestic and sexual violence had been introduced by Articles 5 §   2 and 12 §   2 of the Istanbul Convention . However, the contested obligation did not protect free consent to engage in sexual relations within a couple. The statutory rule in issue had a prescriptive dimension with respect to the manner in which spouses conducted their sex life. Furthermore, a breach of the rule was not without legal consequences. Failure to fulfil marital duties could, in the conditions provided in the Civil Code, be considered a fault justifying the granting of a divorce, as in the present case. It could also entail pecuniary consequences and serve as a basis for a claim for damages. The Court concluded that the very existence of such a marital obligation ran counter to sexual freedom and the right to bodily autonomy, and also to the Contracting States’ positive obligation of prevention in the context of combating domestic and sexual violence. The Government had argued that the criminalisation of sexual assault committed within a couple was sufficient to ensure the protection of each individual’s sexual freedom; the Court, however, considered that this criminal prohibition was not sufficient to deprive of effect the civil obligation introduced by the case-law. The latter was at odds with the progress that had been made in the criminal justice system and with France’s international commitments in the context of combating all forms of domestic violence. The Court could not accept that consent to marriage implied consent to future sexual relations. Such an interpretation would be tantamount to denying that marital rape was reprehensible in nature. The Court had long held that the idea of a husband being immune from prosecution for rape of his wife was unacceptable and ran counter not only to a civilised concept of marriage but also, and above all, to the fundamental objectives of the Convention, the very essence of which was respect for human dignity and human freedom. Consent had to reflect the free willingness to engage in sexual relations at a given moment and in the specific circumstances. In any event, the Court could not, in the present case, identify any particularly serious reason capable of justifying an interference in the area of sexuality. The applicant’s husband could have petitioned for divorce on the grounds of the irretrievable breakdown of the marriage. In that connection, it had been incumbent on him to comply with the requirements of the Code of Civil Procedure, by submitting this ground as his principal argument, and not, as he had done, as an alternative. The defence of his rights could therefore have been secured by other means. In view of all the foregoing considerations, the Court concluded that the reaffirmation of the principle of marital duties and the granting of the divorce on the grounds of the applicant’s exclusive fault had not been based on relevant and sufficient reasons, and that the domestic courts had not struck a fair balance between the competing interests at stake. Conclusion : violation (unanimously). Article 41: finding of a violation sufficient just satisfaction. (See M.C. v.   Bulgaria , 39272/98, 4   December 2003, Legal Summary ; K.A. and A.D. v.   Belgium , 42758/98 and 45558/99, 17   February 2005, Legal Summary ; Söderman v.   Sweden [GC], 5786/08, 12   November 2013, Legal Summary ; Babiarz v.   Poland, 1955/10, 10   January 2017, Legal Summary ; Council of Europe Convention on preventing and combating violence against women and domestic violence, the Istanbul Convention , adopted on 11   May 2011)   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. To access legal summaries in English or French click here . For non-official translations into other languages click here .