ECHR: Marital duties and the right to self-determination

The concept of marital duties has long been a pillar of family law in many national jurisdictions. However, the European Court of Human Rights (ECHR) has recently reiterated that such obligations can never compromise the fundamental right to self-determination, especially when it comes to the sexual sphere.

HW v. France: Sexual Refusal as a Ground for Divorce?

The case HW v. France raised a crucial question: can the refusal to have sexual relations within marriage justify the charge of separation or the payment of compensation?

In the case in question, the husband had asked that the divorce be awarded to his wife, arguing that her refusal to have sexual relations, which had continued for years without relevant medical justification, had caused the marriage to fail. The French judges, on appeal, had agreed with the man, arguing that maintaining a sexual relationship was part of the marital duties according to the national Civil Code.

ECHR's position: sexual consent is essential

The wife took the case to the European Court of Human Rights, which overturned the decision. The Court ruled that:

✅ The right to self-determination and private life (Art. 8 ECHR) cannot be sacrificed in the name of traditional marital duties.
✅ Consent is essential at all times and in all circumstances, regardless of the marital status of the people involved.
✅ Forced sexual intercourse is a form of coercion and may lead to domestic violence and abuse.

This position is in line with the Istanbul Convention, which combats all forms of domestic violence, including sexual coercion within marriage. The ECHR has therefore clarified that marriage does not imply perpetual consent to sexual intercourse, and that every act must be the result of a free and conscious choice.

Legal and cultural implications

This decision marks an important step towards a family law more attentive to individual rights. Its implications are profound:

🔹 Divorce cannot be based on failure to observe sexual duties, as this would imply a violation of personal freedom.
🔹 Sexual self-determination must prevail over national family traditions and norms, which cannot justify interference in private life.
🔹 Any form of sexual coercion, even implicit, is inadmissible, and the provision of “marital duties” in this area risks legitimizing situations of abuse.

Conclusion

The ECHR ruling in the case HW v. France represents an important reminder to respect the fundamental rights of the person even within marriage. Sexual consent is an inalienable principle and its absence can never be the object of legal or economic sanctions.