April 15, 2025
by Carmen Draghici
The Strasbourg Court has been notoriously reluctant to interfere with the domestic regulation of divorce, both as regards its availability (Johnston v. Ireland) and the grounds on which it may be obtained (Babiarz v. Poland, discussed here). Nonetheless, in H.W. v. France, issued in January 2025, it has shown willingness to review the grounds for divorce where they affect core privacy rights, in particular respect for sexual autonomy. The judgment unanimously condemned the legislative and judicial treatment of the refusal to engage in marital relations as fault in divorce proceedings. A decree based on the wife’s failure to fulfil conjugal duties was found inconsistent with her Article 8 right to respect for bodily self-determination and States’ positive obligation to prevent sexual violence.
The applicant petitioned for a fault-based divorce, alleging that the husband had prioritised his career over family life and was bad-tempered, violent and offensive. The husband counterclaimed, arguing that the wife had failed in her marital duties, having refused to engage in intimate relations for several years and made slanderous accusations. Alternatively, he sought a divorce on grounds of irretrievable breakdown of the marriage.
The first-instance court found neither party’s allegations substantiated and denied a fault-based divorce. As regards the alleged failure to meet marital obligations, the wife’s health was found to justify the absence of sexual relations. However, a divorce was granted on the grounds of irretrievable breakdown of the marriage, as the couple had discontinued cohabitation over two years prior to the institution of proceedings (§§5-10).
The Court of Appeal dismissed the wife’s appeal and upheld the husband’s complaint, granting divorce solely on the wife’s fault. It found that the medical evidence did not justify the wife’s continued refusal of intimacy, which constituted a serious and repeated breach of the duties and obligations of marriage, rendering life together intolerable (§§11-15).
The Court of Cassation rejected the applicant’s appeal with limited analysis. Essentially, the lower courts enjoyed wide discretion in ascertaining whether the facts disclosed a serious breach of marital obligations (§§16-19).
The complaint regarded the granting of the divorce on the grounds of the applicant’s fault, specifically her breach of marital duties (§36). The Court reiterated the relevant principles under Article 8: the notion of ‘private life’ extends to sexual life, in relation to which respect for individual autonomy and sexual freedom are important guarantees (§62); States’ margin of appreciation is narrow where a measure affects a fundamental aspect of a person’s existence or identity, although it is generally wide as regards the fair balance to be struck between private and public interests or different Convention rights (§68); in framing and implementing divorce laws, States enjoy a wide margin of appreciation in reconciling competing interests (§69).
Applying these principles, the reaffirmation of conjugal duties and the issuing of divorce on the grounds that the wife had ceased sexual relations with her husband were viewed as interferences with her right to respect for private life, sexual freedom and bodily autonomy; these were particularly intrusive, touching upon one of the most intimate aspects of privacy (§71). The judgment highlighted the Court of Appeal’s stigmatising depiction of the refusal to engage in conjugal relations as a serious and repeated breach of marital duties rendering the continuation of common life intolerable (§71).
Regarding the legal basis for those interferences, the Court noted that Articles 229 and 242 et seq. of the Civil Code permitted fault-based divorce for serious and repeated breaches of marital duties rendering the continuation of common life intolerable (§74). Additionally, according to well-established case-law, spouses were subject to marital duties and failure to fulfil them could constitute fault justifying a divorce. In a 1997 case, the Court of Cassation had held that a wife’s prolonged failure to engage in sexual relations warranted a fault-based divorce in the absence of sufficient medical justification; whilst it had not reiterated that position since then, there had been no departure from it, and the lower courts had continued to apply it (§76). As to the foreseeability of the law, although the case-law had accepted that the refusal of intimacy could be justified by a spouse’s age or health or the other spouse’s violent conduct, absolute certainty as to when an exception applied was not required for the interference to remain ‘in accordance with the law’ (§78).
As regards the legitimacy of the aim pursued under Article 8(2), it was found to be connected with the ‘protection of the rights and freedoms of others’; in fact, divorce for fault where a spouse refused to engage in intimate relations enabled the other to end legal ties (§§81-82).
The Court therefore focused on the ‘necessary in a democratic society’ test, inquiring whether domestic courts had struck a fair balance between the competing interests at stake: the wife’s sexual freedom and the husband’s right to end the relationship if sexual abstinence rendered the continuation of the marriage intolerable to him (§84). The Court could not exclude that, in certain circumstances, compelling a spouse to stay married despite the irretrievable breakdown of the relationship amounted to an excessive interference with his/her rights (§84). The Court recalled, however, that, since the impugned measure affected one of the most intimate aspects of private life, the margin of appreciation afforded to States was narrow; only particularly serious reasons justified interferences by public authorities in the area of sexuality (§85). The Court thus distinguished the application from Babiarz based on the greater importance of the right at stake here (§85). It noted that the conjugal duty set out in domestic law and upheld by the courts disregarded the notion of consent to sexual relations (§86). It further stressed that any non-consensual act is a form of sexual violence and that States have a positive obligation, under Articles 3 and 8 ECHR and the Convention on preventing and combating violence against women and domestic violence, to establish a legal framework protecting against third-party violence (§87).
According to the Court, treating the failure to fulfil conjugal duties as a ground for divorce did not guarantee free consent to sexual relations within marriage. It introduced prescriptive obligations in the conduct of sexual life; in fact, refusal to comply entitled the other spouse to a fault-based divorce, could have pecuniary consequences, and justified a claim for damages (§88). Thus, the very existence of such marital duties ran counter to sexual freedom/ bodily self-determination and States’ preventative obligations in relation to domestic and sexual violence (§89). The respondent submitted that criminalising marital rape sufficed to guarantee sexual freedom within the couple; the Court disagreed, given the effects of the civil obligations (§90).
Significantly, the Court rejected the suggestion that consent to marriage implied consent to future sexual relations. Such a justification eliminated the reprehensible nature of marital rape, whereas the possibility to commit such acts with impunity was contrary to a civilised notion of marriage and the fundamental objectives of the Convention, namely ensuring respect for human dignity and freedom. Consent must therefore reflect the free will to engage in a particular sexual activity at a particular time (§91).
For the Court, there was no sufficiently serious reason to justify an interference in the sphere of sexuality. The husband had the option to divorce on grounds of irretrievable breakdown of the marriage; consequently, the protection of his interests could be ensured through other means (§92).
The Court concluded that the reaffirmation of the notion of conjugal duties and the granting of the divorce on grounds of the wife’s fault had not been based on relevant and sufficient reasons. The failure of domestic courts to strike a fair balance between competing interests amounted to a violation of Article 8 (§93).
In previous Strasbourg case-law, successful claims regarding divorce (or judicial separation) were largely limited to the excessive length of court proceedings. This was said to breach the Article 6 right to have one’s case heard within a reasonable time; special diligence was required in proceedings concerning civil status, which affect the enjoyment of the right to respect for family life (Laino v. Italy, §18; Aresti Charalambous v. Cyprus, §44). Also under Article 6, where domestic law recognises a right to judicial separation, the legal avenues available must be ‘effectively accessible’, including to impecunious litigants (Airey v. Ireland, §33). Moreover, the authorities’ failure to conduct divorce proceedings within a reasonable time can also raise an issue under Article 12 (Aresti Charalambous, §56). In V.K. v. Croatia, the duration of the proceedings (over five years), notwithstanding the spouses’ agreement to divorce, had left the applicant in a state of prolonged uncertainty, which constituted an unreasonable restriction on his right to remarry (§106). Regrettably, the Article 12 claim failed where the applicant had no concrete plans to remarry (Truszkowska v. Poland, §3); nor was Article 8 violated by protracted divorce proceedings in the absence of a new partner (Berlin v. Luxembourg, §§64-65).
Aside from procedural requirements linked to fair trial concerns, in divorce cases Strasbourg subsidiarity has resulted in light-touch supervision of domestic legislative and judicial practices. First, the Court ruled that Article 12 does not enshrine a right to divorce, citing the ordinary meaning of the words and the indication in the travaux préparatoires that dissolution was deliberately omitted (Johnston v Ireland, §52); it further excluded a positive obligation under Article 8 to permit divorce so as to protect the family life created with a new partner (§§56-57). However, Article 12 does not guarantee the indissolubility of the marriage or immunity from nullity proceedings (Slimani v. France, §2).
Secondly, the assessment of legislative frameworks appears broad-brush and uncritical. On a declaratory level, the case-law recognises the need to read Article 12 in light of present-day conditions (Piotrowski v. Poland, §46) and reconcile the competing personal interests at stake under Article 8 (Babiarz, §47). However, in the area of framing divorce laws and implementing them in concrete cases, States are afforded a wide margin of appreciation (Piotrowski, §44, Babiarz, §47). In practice, the Court readily accepts generic justifications, such as the aim ‘to protect one party, usually the weaker, against the machinations and bad faith of the other party’ (Piotrowski, §49).
Thirdly, as regards domestic rulings, the Court has invoked its ‘fourth instance’ doctrine, refusing to review the application of the law to the facts insofar as the domestic authorities had done so in detail, comprehensive evidence had been gathered, the applicants had had an opportunity to make representations and cross-examine witnesses, and the first-instance judgments had been reviewed in appellate proceedings (Babiarz, §53; Piotrowski, §50). Moreover, the Court has held that Article 12 does not guarantee the right to a successful outcome in divorce proceedings (Babiarz, §56, Ivanov and Petrova v. Bulgaria, §64), thereby avoiding to pronounce on the substantive issues before it, such as the refusal to grant a divorce where the spouses no longer cohabit and one party has formed a new family. In Ivanov and Petrova it accepted that an Article 12 breach may arise where, despite the irretrievable breakdown of marital life, domestic law regarded the lack of consent of an innocent party as an insurmountable obstacle to granting a divorce to a guilty party; however, the complaint was declared inadmissible because the domestic courts’ justification had been that the marriage was not irretrievably broken down.
Finally, the assessment of proportionality takes a narrow view of the detriment caused by the courts’ refusal to grant a divorce. The Court thus found no violation of Article 12 where the applicant had not mentioned any concrete marriage plans frustrated by the inability to divorce and nothing prevented a fresh divorce petition if/when circumstances changed (Piotrowski, §51).
As explained in F. v. Switzerland, States retain a wide margin of appreciation in matrimonial matters, a field ‘closely bound up with the cultural and historical traditions of each society and its deep-rooted ideas about the family unit’ (§38). While acknowledging, in abstracto, that divorce laws must reflect present-day conditions, ensure timely clarification of status to enable remarriage, and strike a fair balance between competing interests, ultimately the Court has remained highly deferential to domestic authorities. The closer scrutiny of divorce grounds in H.W. is therefore not unremarkable.
Admittedly, this may remain an isolated departure from the Court’s self-restraint. Indeed, it expressly distinguished H.W. from Babiarz on the basis of higher stakes (bodily self-determination), which suggests that the interest in dissolving empty legal ties and protecting new family life is still seen of insufficient magnitude to warrant Strasbourg intervention. Rather, the focus on physical autonomy follows the Nurcan Bayraktar v. Turkey ruling (examined here), which condemned a law requiring a 300-day waiting period before a divorcée’s remarriage or medical evidence that she was not pregnant. H.W. confirms that the Court will scrutinise legal requirements associated with divorce where they affect intimate aspects of privacy and perpetuate an archaic vision of marriage.
The judgment also invites reflection on the meaning of marriage as formalised intimate relationship, distinguishable from other home-sharing arrangements. While ‘[t]he essence of the right to marry… is the formation of a legally binding association’, even where the circumstances (e.g., deprivation of liberty) prevent intimacy (Hamer v. UK, §71), arguably modern realities (individual autonomy within the couple, the dissociation of marriage from procreation) have not removed the expectation of intimacy between spouses, unless excluded by mutual agreement. In H.W., the Court noted that no-fault divorce adequately protected a spouse’s rights where the other refused intimacy indefinitely. It seemingly suggested that a marriage in which one party unilaterally ends the couple’s intimate life is broken down and this entitles the other to an exit option.
Interestingly, H.W. revolved around the stereotypical expectation that wives should satisfy their husbands’ sexual needs and States’ obligation to prevent marital rape. Since the impugned law did not operate gender-based distinctions in its approach to conjugal duties (§§20-23), it is unclear how the ruling would have differed if the same divorce decree had been issued against a man.
H.W. v. France signals a departure from the Strasbourg Court’s historical unwillingness to question States’ choices in divorce matters. Albeit prompted by concerns to protect sexual autonomy rather than addressing the regulation of civil status, it could lead to greater scrutiny of divorce laws. Previous rulings on the grounds for divorce, whilst reiterating the Article 8 mantra (striking a fair balance between competing interests), largely paid lip service to that principle and accepted unbalanced regimes, such as the insurmountable veto power given to an innocent party, notwithstanding the creation of a new family unit by his/her estranged spouse (Babiarz). Future case-law might reassess the disproportionate impact of substantive bars on divorce or long waiting periods on the ability to re-partner, contract a new marriage, avoid adulterous procreation, access financial and property relief, and exercise freedom of testamentary disposition. Moreover, the finding that indefinite consent to intimacy cannot be derived from the initial consent to be married potentially challenges the non-rescindable nature of the marriage contract.
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