27 January 2025
It may come as a surprise that there still exists a country or countries in the enlightened West which do not regard sexual intercourse without consent within marriage as rape – or at least sexual assault. After a long campaign in this country, the courts of England and Wales finally capitulated in October 1991, recognising marital rape as a crime in the landmark case of R v R [1991] UKHL 12. In his judgement, Lord Lane confirmed: “The idea that a wife consents in advance [i.e. by being married] to her husband having sexual intercourse with her whatever her state of health or however proper her objections, is no longer acceptable.”
This was a long cry from the position that had held before, best expressed by Justice Henry Hawkins in 1888, that
“The intercourse which takes place between husband and wife after marriage is not by virtue of any special consent on her part but is mere submission to an obligation imposed on her by law.”
Now comes a judgement against France that shows that in some pockets of the Council of Europe, the old rule still applies, even if the criminal law has established the possibility of rape within marriage.
H.W. c. FRANCE (Requête no 13805/21)
The judgment is presently only available in French, so I give a fairly detailed summary below.
Background facts
In July 2015, the applicant sued her husband for divorce on the grounds of fault. She claimed that he had prioritised his professional career over their family life and that he had been irascible, violent and hurtful. Her husband counterclaimed that the divorce be granted on the grounds of the applicant’s exclusive fault, arguing, among other things, that she had failed in her marital duties for several years. Alternatively, he requested a divorce on the grounds of permanent breakdown of the marital relationship.
In a judgment of July 2018, the family court judge of the high court considered that none of the spouses’ claims were substantiated and that the divorce could not be granted on the grounds of fault. He granted it on the grounds of permanent breakdown of the marital relationship.
The applicant appealed this judgment. In November 2019, the Court of Appeal granted a divorce for fault, the exclusive fault of the applicant, on the grounds that she had acknowledged having ceased all intimate relations with her husband since 2004, which constituted a serious and repeated violation of the duties and obligations of marriage, making the continuation of their life together intolerable. [my italics]
The applicant’s appeal on points of law was dismissed in September 2020.
Background law
The divorce was granted pursuant to the relevant articles of the French Civil Code, which provide that a divorce may be granted for fault when facts constituting a serious or repeated breach of the duties and obligations of marriage are attributable to one of the spouses and make the continuation of the common life intolerable.
It follows from the long-standing but consistent case law of the Court of Cassation that spouses are bound by a marital duty and that its failure to perform may constitute a fault justifying divorce. Although the high court has not reaffirmed this case law since then, it has never been reversed and continues to be applied by the lower courts.
French case law does not consider every refusal to have sexual relations to be wrongful. It leaves it to the lower courts to determine whether this refusal is sufficient to characterise a serious or repeated breach of the duties and obligations of marriage justifying divorce. It also acknowledges that certain circumstances such as the age, state of health or abusive or violent nature of the spouse are such as to justify the failure to perform the marital duty. Domestic law gives trial judges the power to assess whether or not the breach of a matrimonial obligation is serious enough to justify divorce.
In this case the Strasbourg Court upheld the wife’s application, finding a breach of her right to private life under Article 8 of the Convention.
Reasoning behind the Court’s decision
In law – Article 8:
1) On the existence of interference – The reaffirmation of the marital duty and the fact of having granted a divorce for fault on the grounds that the applicant had ceased all intimate relations with her husband constituted an interference with her right to respect for private life, her sexual freedom and her right to dispose of her body. The French Court of Appeal’s conclusions were particularly stigmatising, insofar as the applicant’s refusal was considered to be a “serious and repeated” breach of the obligations of marriage making the continuation of the common life “intolerable”.
2) On the justification of the interference –
The Court did not call into question the foreseeability of the law surrounding marital obligations, considering that the case-law in question was set out with sufficient precision to enable the applicant to regulate her conduct, by seeking informed advice if necessary.
The divorce was granted pursuant to the relevant articles of the Civil Code, which provide that a divorce may be granted for fault when facts constituting a serious or repeated breach of the duties and obligations of marriage are attributable to one of the spouses and make the continuation of the common life intolerable.
It followed from the long-standing but consistent case law of the Court of Cassation that spouses are bound by a marital duty and that its failure to perform may constitute a fault justifying divorce. Although the high court has not reaffirmed this case law since then, it has never been reversed and continues to be applied by the lower courts.
The Strasbourg Court therefore concluded that the disputed interference was based on well-established domestic case law.
Noting that domestic law guarantees the right to divorce and that the breakdown of marriage affects the rights of each spouse, the Court acknowledges that the purpose of the interferences at issue, which refer to the right of each spouse to end the matrimonial relationship, was related to the “protection of the rights and freedoms of others” within the meaning of the Convention.
The necessity of the interferences – In so far as the interferences in question affected one of the most intimate aspects of the applicant’s private life, the Court considered that the margin of appreciation left to the Contracting States was narrow. It reiterated that only particularly serious reasons could justify interference by public authorities in the area of sexuality.
The Court noted, furthermore, that the marital duty, as set out in the domestic legal order and reaffirmed in the present case, does not take into account consent to sexual relations, even though this constitutes a fundamental limit on the exercise of another’s sexual freedom. In this regard, the Court reiterated that any non-consensual sexual act constitutes a form of sexual violence. It has also consistently held, under Article 8 alone or in conjunction with Article 3, that Contracting States must establish and implement an appropriate legal framework offering protection against acts of violence that may be committed by private individuals.
On the one hand, refusal to submit to marital duty may, under the conditions set out in Article 242 of the Civil Code, be regarded as a fault justifying the granting of divorce, as was the case in the instant case (paragraphs 20 and 23-26 of the judgment). On the other hand, it may entail financial consequences and form the basis of an action for compensation (paragraphs 22 and 27 ).
The Court concluded that the very existence of such a matrimonial obligation was contrary to both sexual freedom and the right to control one’s body and to the positive obligation of prevention incumbent on the Contracting States in combating domestic and sexual violence.
While the Government argued that the criminalisation of sexual assaults committed within a couple was sufficient to ensure the protection of each person’s sexual freedom, the Court considered that this criminal prohibition was not sufficient to deprive of effect the civil obligation introduced by the case-law. It observed that the latter ran counter to the progress made in criminal law (paragraphs 30 to 33 of the judgment) and to the international commitments made by France to combat all forms of domestic violence (paragraph 34).
The Court could not accept, as the Government suggested, that consent to marriage implies consent to future sexual relations. Such a justification would be likely to remove the reprehensible nature of marital rape. However, the Court has long held that the idea that a husband cannot be prosecuted for the rape of his wife is unacceptable and that it is contrary not only to a civilised notion of marriage but also and above all to the fundamental objectives of the Convention, the very essence of which is respect for human dignity and freedom (S.W. v. the United Kingdom, cited above, § 44, and C.R. v. the United Kingdom, 22 November 1995, § 42, Series A no. 335-C). In the Court’s view, consent must reflect the free will to have a particular sexual relationship, at the time it occurs and taking into account its circumstances.
Moreover, the Court did not discern, in the present case, any particularly serious reason capable of justifying an interference in the field of sexuality (Dudgeon, cited above, § 52; Smith and Grady, cited above, § 89; and K.A. and A.D. v. Belgium, cited above, § 84). It noted that the applicant’s spouse had the possibility of seeking a divorce on the grounds of permanent breakdown of the marital relationship. In this respect, it was incumbent upon him to comply with the requirements of Article 1077 of the Code of Civil Procedure by submitting this application as a principal claim and not as a subsidiary claim, as he did in the present case (paragraphs 13 and 60 above). His rights could therefore have been defended by other means.
From all the foregoing considerations, the Court concluded that the reaffirmation of the marital duty and the granting of the divorce on the grounds of the exclusive fault of the applicant were not based on relevant and sufficient grounds and that the domestic courts failed to strike a fair balance between the competing interests at stake. The foregoing factors are sufficient to find a violation of Article 8 of the Convention.
