The European Court of Human Rights ruled in favor of a 69-year-old French woman this Thursday.
Her husband had obtained a divorce through his wife's sole fault, on the grounds that she had stopped having sexual relations with him for several years.
For the court, a woman who refuses sexual relations to her husband must not be considered by the courts as “at fault” in the event of divorce.
A woman who refuses sex to her husband should not be considered by the courts as “faulty” in the event of divorce. This is what the European Court of Human Rights (ECHR) ruled this Thursday, January 23. The latter ruled in favor of a 69-year-old French woman, whose husband had obtained a divorce solely at the fault of his wife on the grounds that she had stopped having sexual relations with him for several years.
The ECHR, which sits in Strasbourg, condemned France for violating Article 8 of the European Convention on Human Rights, relating to the right to respect for private and family life. In its judgment delivered unanimously by the seven judges, the ECHR recalls that “any non-consensual sexual act constitutes a form of sexual violence”. Noting that the refusal to submit to the “marital duty” can be considered as a fault justifying the pronouncement of divorce, the court considers that “the very existence of such a matrimonial obligation is contrary both to sexual freedom and the right to dispose of one's body and to the positive obligation of prevention which weighs on the Contracting States in the fight against domestic and sexual violence“.
“The Court cannot accept, as the government suggests, that consent to marriage implies consent to future sexual relations. Such a justification would be likely to remove marital rape from its reprehensible nature”insists the ECHR.
This decision marks the abolition of marital duty
Me Lilia Mhissen, one of the applicant's lawyers
For Emmanuelle Piet, of the Feminist Collective Against Rape (CFCV) who supported the applicant, “France must acknowledge that the European Court of Human Rights considers that marriage does not imply an obligation of sexual relations between spouses and therefore that articles 215 and 212 of the civil code be modified”. Article 215 of the civil code stipulates that “the spouses bind each other to a community of life” and article 212 that “spouses owe each other mutual respect, fidelity, help, assistance”. For Delphine Zoughebi, lawyer for the applicant, “Today's decision will be binding on French judges who will no longer be able to consider that a community of life implies a community of bed”.
“I hope that this decision will mark a turning point in the fight for women’s rights in France”reacted the 69-year-old Frenchwoman in a press release sent by one of her two lawyers, Me Lilia Mhissen. “This decision marks the abolition of marital duty and the archaic and canonical vision (in accordance with the rules of the Catholic Church, editor's note) of the family”greeted Me Lilia Mhissen for her part.
This victory is for all women who, like me, find themselves confronted with aberrant and unfair legal decisions.
The applicant
-Residing in Chesnay (Yvelines), the applicant, who wishes to remain anonymous, filed for divorce in 2012. In July 2018, the family affairs judge of the Versailles high court ruled that the divorce could not be granted. for fault and that the wife's health problems were such as to justify the lasting absence of sexuality within the couple.
But in November 2019, the Versailles Court of Appeal pronounced the divorce to the exclusive fault of the wife, considering that her refusal of intimate relations with her husband constituted “a serious and renewed violation of the duties and obligations of marriage making the continuation of life together intolerable”. The applicant filed an appeal, which was rejected.
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The wife seized the ECHR in 2021, supported by the CFCV and the Women's Foundation. “It was impossible for me to accept it and leave it there”she explained this Thursday in a press release. “The decision of the Court of Appeal condemning me was and is unworthy of a civilized society because it denied me the right not to consent to sexual relations, depriving me of my freedom to decide about my body. It reassured my husband and all spouses in 'a right to impose their will'”.
Welcoming the decision of the ECHR, the sixty-year-old mother of four children considered that “this victory is for all women who, like me, find themselves confronted with aberrant and unjust legal decisions, calling into question their bodily integrity and their right to privacy”.
For Delphine Zoughebi, “from now on, marriage is no longer sexual servitude. This decision is all the more fundamental as nearly one in two rapes is committed by the spouse or partner.”
