France’s Divorce Law Changes

On January 23rd 2025, the European Court of Human Rights (ECHR) issued a ruling that will impact France divorce law. The highest court in Europe ruled that France violated women’s rights in divorce cases by not considering the doctrine of consent in its domestic civil code.

In H.W. v France, ECHR issued a judgment in favour of the divorcee applicant, finding that France violated her right to respect for private and family life, which is protected under Article 8 of the European Convention on Human Rights. 

Factual Background of the Case 

The French divorce ruling concerned a fault-based divorce in which French courts attributed blame solely to the applicant on the grounds that she had refused to have marital relations with her husband. Although the applicant did not oppose the divorce, she objected to the grounds on which it was granted.

The applicant married her husband in 1984, and together they had four children. In 2012, the applicant petitioned the court for divorce, and the family affairs judge of the Versailles Tribunal de Grance Instance issued interim orders and granted them leave to institute divorce proceedings.

The Decision of the Court of First Instance

In 2015, the applicant instituted divorce proceedings against the husband on the grounds of fault. She argued that he was violent, bad-tempered, insulting and that he prioritised his professional career over family life. The husband counterclaimed, alleging that the divorce ought to be granted on the grounds of fault by the applicant alone. 

According to him, the applicant failed to fulfil her marital duties for many years and breached her duty of mutual respect between spouses by making slanderous statements. In the alternative, he sought the divorce be granted on the grounds of irretrievable breakdown of the marriage.

In 2018, the French Court at Versailles found that none of the grounds raised by the couple were substantiated, and that the marriage could not be dissolved on grounds of fault. Instead, the court granted the divorce on the grounds of an irretrievable breakdown of marriage, citing the applicant’s health complications as the cause of the couple’s long-term lack of sexual relations.

First Appeal: Versailles Court of Appeal

Dissatisfied with the grounds, the applicant appealed against the decision. In 2019, the Versailles Court of Appeal granted the divorce but attributed fault solely to the applicant. 

The appellate court granted the divorce on the grounds that the applicant’s continued failure to have marital relations with her husband constituted a serious breach of her marital duties, making it impossible to maintain a state of matrimony.

Second Appeal: Court of Cassation

Again, discontented with the decision, the applicant filed a second appeal on points of law, but the Court of Cassation rejected her appeal in 2020, finding that the grounds relied on were insufficient to set aside the decision of the first appellate court. 

Determined to challenge the position taken by the French courts, the applicant lodged an application with ECHR in 2021, relying on Article 8 of the European Convention on Human Rights on the right to respect for private and family life.

The ECHR Divorce Appeal Ruling

ECHR found that the doctrine of “marital duties”, as applied under French domestic divorce law and as reaffirmed in case law, failed to consider consent to sexual relations. According to Article 242 of the French Civil Code, failure to fulfil marital duties could be considered a fault and sufficient grounds for granting divorce. When qualified under the requirements in Article 242, failure to fulfil marital status can also form grounds for claiming damages and other pecuniary consequences.

Since a 1997 judgment by the Court of Cassations, it has been a longstanding precedent that failure to have sexual relations with a spouse amounts to a breach of marital obligations under Article 242 of the Civil Code and sufficient grounds for granting fault-based divorce.

This legal position allowed courts to interfere in private and family life. Interference was justified by the right of each spouse to end the marriage, and linked to the protection of freedoms and rights of others within the meaning of the Convention. As such, ECHR was tasked with determining whether French domestic courts had struck a fair balance between the competing interests at stake.

The European apex court noted that in so far as interference affects one of the most intimate aspects of private life, the margin of appreciation afforded the Convention’s contracting states was narrow. Contracting states can only justify interference in the area of sexuality and for specific, serious reasons.

In determining the French divorce ruling, ECHR unanimously concluded that marital obligations as applied to refusal to have sexual relations with a spouse ran counter to France’s positive obligation of prevention in the context of combatting sexual and domestic violence, individuals’ sexual freedom and the right to autonomy.

In the Court’s opinion, consent to marriage does not imply consent to future sexual relations, and such an interpretation would be equivalent to denying that marital rape was reprehensible. On the contrary, consent should reflect a free willingness to engage in marital relations at any given moment and under specific circumstances.

ECHR found that preceding French court rulings failed to identify any particular reason to justify interference in any area of the applicant’s sexuality. Therefore, the European Court concluded that reaffirming the doctrine of marital duties and granting the divorce on the grounds of exclusive fault on the applicant’s part was not based on sufficient and relevant reasons. ECHR found that French domestic courts failed to strike a fair balance between the competing interests at stake.

What’s the Impact of the ECHR Divorce Appeal Ruling?

The French divorce ruling by ECHR came amid a period of disquietude in France following the high-profile case of Dominique Pelicot, whom the court found guilty after he hired dozens of men to rape his wife after drugging her. Besides shocking the world, that case rekindled debates on women’s rights in France.

In a statement released by Lilia Mhissen, the applicant’s lawyer, H.W. celebrated her win at ECHR, commenting: “I hope this decision will mark a turning point in the fight for women’s rights in France. It is now imperative that France, like other European countries, such as Portugal or Spain, take concrete measures to eradicate this rape culture and promote a true culture of consent and mutual respect.”

Mhissen noted that although the ECHR ruling has no direct impact on H.W.’s divorce, it will significantly impact French law, preventing courts from making similar erroneous and unjust divorce rulings in future.

Speaking to Reuters, a diplomatic source from France’s Ministry for European & Foreign Affairs said the French government acknowledged the ECHR ruling, and it is committed to the fight against sexual violence. The source also confirmed that a law that would modify the legal definition of rape was under consideration in parliament.

Source: Reuters

References:

European Court of Human Rights

European Convention on Human Rights

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