Judgment concerning France

In the case of H.W. v. France the Court held that there had been a violation of the right to respect for private and family life.
The case concerned a fault-based divorce in which blame was attributed solely to the applicant, on the grounds that she had ceased to have sexual relations with her husband. The applicant did not complain about the divorce itself, which she had also sought, but rather about the grounds on which it had been granted.
The Court noted that the concept of “marital duties”, as provided for in the domestic legal order and reaffirmed in the present case, took no account whatsoever of consent to sexual relations. Failure to fulfil marital duties could, in the conditions set out in Article 242 of the Civil Code, be considered a fault which justified the granting of a divorce. It could also entail pecuniary consequences and, in certain circumstances, 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, the right to bodily autonomy and the Contracting States’ positive obligation of prevention in the context of combating domestic and sexual violence.