The highest European court supports a divorced French woman for refusing to have sexual relations

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Europe's top rights court on Thursday ruled in favour of a 69-year-old Frenchwoman whose husband had obtained a divorce on the grounds that she had stopped having sex with him.


The European Court of Human Rights (ECHR) condemned France, saying a woman who refuses to have sex with her husband should not be considered "at fault" by courts in the event of divorce.


The Strasbourg-based court said France violated article 8 of the European Convention on Human Rights, relating to the right to respect for private and family life.


It said that any concept of marital duties needed to take into account "consent" as the basis for sexual relations.


The mother of four, who wished to remain anonymous, hailed the ruling.


"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 victory is for all the women who, like me, find themselves faced with aberrant and unjust court rulings that call into question their bodily integrity and their right to privacy."


The ruling comes as French society debates the concept of consent.


Women's rights advocates have said the notion of "consent" must be added to France's law defining rape.


The woman did not complain about the divorce, which she had also sought, but rather about the grounds on which it had been granted, the court said.

'Sexual Violence'

The court identified her only as H.W., saying she lives in Le Chesnay in the western suburbs of Paris. 


"The Court concluded that the very existence of such a marital obligation ran counter to sexual freedom, (and) the right to bodily autonomy," a statement from the court said.


"Any non-consensual act of a sexual nature constituted a form of sexual violence," the statement added.


The Strasbourg-based court said the French courts had not struck "a fair balance between the competing interests at stake."


"The applicant's husband could have petitioned for divorce, submitting the irretrievable breakdown of the marriage as the principal ground, and not, as he had done, as an alternative ground," the court found.


The woman and J.C. married in 1984 and had four children, including a disabled daughter who needed the constant presence of a parent, a role that her mother took on. 


Relations between husband and wife deteriorated when their first child was born. The woman began experiencing health problems in 1992.


In 2002, her husband began abusing her physically and verbally, the court said.


In 2004, she stopped having sex with him and in 2012 petitioned for divorce.


In 2019, an appeals court in Versailles dismissed the woman's complaints and sided with her husband, while the Court of Cassation dismissed an appeal without giving specific reasons.


She turned to the ECHR, which acts as a court of last instance where all domestic legal avenues are exhausted, in 2021.

'Sexual Servitude'

"It was impossible for me to accept it and leave it at that," the woman said.


"The Court of Appeal's decision condemning me was and is unworthy of a civilised society because it denied me the right not to consent to sexual relations, depriving me of my freedom to make decisions about my body," she said.


"It reinforced the right of my husband and all spouses to impose their will."


Her case has been supported by two rights group, the Fondation des Femmes (Women's Foundation) and Collectif feministe contre le viol (Feminist Collective against Rape).


In a joint statement in 2021, the women's rights groups said: "Marriage is not and must not be sexual servitude."


While French criminal justice abolished conjugal duty in 1990, "civil judges continue to impose it through an archaic vision of marriage," they said.


"From now on, marriage is no longer sexual servitude," said Delphine Zoughebi, a member of the woman's defence team.


"This decision is all the more fundamental given that almost one in two rapes is committed by a spouse or partner."


The ECHR is part of the 46-member Council of Europe pan-European rights body. It enforces the European Convention on Human Rights and its rulings are legally binding and not advisory.
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