Failure to fulfill marital duties that determines a fault-based divorce attributed exclusively to the applicant: violation of the right to respect for private life Commentary to Judgment of the European Court of Human Rights H.W. v. France, of 23 January 2025

Abstract

The European Court of Human Rights, sitting in its Fifth Section, delivers its judgment on the application lodged by a woman of French nationality concerning the alleged violation of her right to respect for private life, as protected by Article 8 of the European Convention on Human Rights.

The Court unanimously finds that there has been a violation of Article 8 of the Convention by the French State. The domestic courts had granted the applicant’s divorce, assigning sole blame to her for breaching her marital duties, specifically by refusing to engage in sexual relations with her husband.

The Court applies a three-step test to assess the legitimacy of the interfer­ence with the applicant’s right to respect for her private life. It first observes that the concept of “marital duty” applied in this case is a jurisprudential construct of the French Court of Cassation and, therefore, is deemed to have a basis in domestic law. Secondly, the interference pursued a legitimate aim under the second paragraph of Article 8 of the Convention (namely, the protection of the rights of others, in this case the husband’s). However, the interference is found to be unnecessary in a democratic society, as it infringes upon the applicant’s sexual autonomy and disregards her free consent to engage in intimate relations, which cannot be presumed, even within the bounds of marriage.