ECtHR rules fault based divorce attributed solely to the failure to fulfil of marital duties violates Article 8 of the Convention

In a recent judgement, the European Court of Human Rights (ECtHR) held unanimously that there had been a violation of Article 8 (right to respect for private and family life) of the European Convention of Human Rights.

The case concerned a French national who was married in 1984. The couple petitioned for divorce in 2012, with the applicant bringing divorce proceedings against her husband. Her husband at the time (Mr JC) counterclaimed and argued that the divorce ought to be granted on the basis of fault by the applicant alone. The domestic courts attributed blame solely to the applicant, on the ground that she had ceased to have sexual relations with her husband.

The applicant brought proceedings in the ECtHR relying on Article 8 of the ECHR. The court acknowledged the presence of the concept of “marital duties” in the domestic legal order. However, it noted that both in the legal order and in the current case, the domestic courts took no account of consent to the sexual relations. Furthermore, according to domestic legislation, failure to fulfil marital duties could in certain circumstances entail pecuniary consequences and serve as a basis for a claim of damages.

In the Court’s view, consent to marriage could not imply consent to future sexual relations. Such an interpretation would be tantamount to denying that marital rape was reprehensible in nature. On the contrary, consent had to reflect a free willingness to engage in sexual relations at a given moment and in the specific circumstances. The court ruled that the very existence of such a marital obligation ran counter to sexual freedom and the right to bodily autonomy, as well as counter to the states positive obligation of prevention in the context of combating domestic and sexual violence. The Court could not identify any serious reason capable of justifying an interference with these rights. It noted that the applicant’s husband could have petitioned for divorce, submitting the irretrievable breakdown of the marriage as the principal ground. 

The Court concluded that the reaffirmation of the principle of marital duties and the granting of the divorce on grounds of the applicant’s exclusive fault had not been based on relevant and sufficient reasons, and that the domestic courts had not struck a fair balance between the competing interests at stake and as such there had been a violation of Article 8 of the Convention.

 

 

Click here to read the full decision.

 

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