In 2019, the Versailles Court of Appeal declared the divorce of a couple, finding the wife wrong because she had refused sex to her husband. A decision for which the ECHR condemned France on January 23. Divorce specialist, lawyer Yves Tolédano returned to the notion of “conjugal duty” in “Pascal Praud and you”.
The European Court of Human Rights has just ruled in favor of a 69-year-old French woman, whose husband obtained a divorce on the grounds that she had stopped having sexual relations with him for several years. A woman who refuses sexual relations to her husband should not be considered by the courts as “at fault” in the event of divorce, the court ruled, citing Article 8 of the European Convention on Human Rights. .
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Until now, French jurisprudence considered “conjugal duty” – namely the requirement for regular sexual relations within marriage – as part of the obligations of marriage, although with nuances in the facts. “In each couple, there is a particular story and the judge who looks at each story,” explains lawyer Yves Tolédado.
What changes after the ECHR decision?
The refusal to have intimate relations had to be “justified”, relates Maître Yves Tolédano, lawyer at the Paris bar and specialist in divorce. For example, in the case where the spouse is “suffered from a sexually transmitted disease” or if the person no longer desires their spouse, because he or she behaved badly or was violent. Furthermore, justice was also based on the notion of duration. “If for 48 hours we tell you no, we are not going to do a fault-based divorce.” On the other hand, if the refusal is established lastingly, “the judges said yes”.
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“The fact of refusing all marital duties obviously did not authorize the other spouse to force their husband or wife”, underlines Yves Tolédano, who recalls that rape between spouses is punishable by 20 years in prison. But if the husband or wife has the right to no longer having a desire for one's companion, the spouse who is not wanted, could up until now assert conjugal duty in the event of divorce.
While the ECHR considered that marital duty was contrary to sexual freedom and the right to dispose of one's own body, consent to marriage therefore requires “no consent to future sexual relations”. “Such a justification would be likely to remove the reprehensible nature of marital rape,” the body communicated. Which means that by getting married, a person can now “tell their spouse that they do not want marital relations”, explains Yves Tolédano. With this decision, the ECHR wants to put an end to an “archaic and canonical vision of the family”.
