issued by the Registrar of the Court  
ECHR 024 (2025)  
23.01.2025  
Fault-based divorce attributed exclusively to the applicant for failure to fulfil  
marital duties: violation of right to respect for private life  
In today’s Chamber judgment1 in the case of H.W. v. France (application no. 13805/21) the European  
Court of Human Rights held, unanimously, that there had been:  
a violation of Article 8 (right to respect for private and family life) of the European Convention on  
Human Rights  
The case concerned a fault-based divorce in which blame was attributed solely to the applicant, on  
the grounds that she had ceased to have sexual relations with her husband. The applicant did not  
complain about the divorce itself, which she had also sought, but rather about the grounds on which  
it had been granted. The Court noted that the concept of “marital duties”, as provided for in the  
domestic legal order and reaffirmed in the present case, took no account whatsoever of consent to  
sexual relations. Failure to fulfil marital duties could, in the conditions set out in Article 242 of the  
Civil Code, be considered a fault which justified the granting of a divorce. It could also entail  
pecuniary consequences and, in certain circumstances, serve as a basis for a claim for damages.  
The Court concluded that the very existence of such a marital obligation ran counter to sexual  
freedom, the right to bodily autonomy and the Contracting States’ positive obligation of prevention  
in the context of combating domestic and sexual violence.  
In the present case, the Court could not identify any reason capable of justifying this interference by  
the public authorities in the area of sexuality. It noted that the applicant’s husband could have  
petitioned for divorce, submitting the irretrievable breakdown of the marriage as the principal  
ground, and not, as he had done, as an alternative 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.  
It followed that there had been a violation of Article 8 of the Convention.  
A legal summary of this case will be available in the Court’s database HUDOC (link).  
Principal facts  
The applicant, Ms H.W., is a French national who was born in 1955 and lives in Le Chesnay.  
The applicant and Mr J.C. married in 1984 and had four children together. On 17 April 2012 the  
applicant petitioned for divorce.  
On 29 January 2013 the family-affairs judge of the Versailles tribunal de grande instance granted the  
couple leave to institute divorce proceedings and ordered interim measures.  
1. Under Articles 43 and 44 of the Convention, this Chamber judgment is not final. During the three-month period following its delivery,  
any party may request that the case be referred to the Grand Chamber of the Court. If such a request is made, a panel of five judges  
considers whether the case deserves further examination. In that event, the Grand Chamber will hear the case and deliver a final  
judgment. If the referral request is refused, the Chamber judgment will become final on that day.  
Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for supervision of its execution.  
Further information about the execution process can be found here: www.coe.int/t/dghl/monitoring/execution.  
On 19 July 2015 the applicant brought divorce proceedings against her husband on grounds of fault.  
She alleged that he had prioritised his professional career over family life and that he had been  
bad-tempered, violent and insulting.  
Mr J.C. counterclaimed, arguing that the divorce ought to be granted on grounds of fault by the  
applicant alone; he alleged that for several years she had failed to fulfil her marital duties and that  
she had breached the duty of mutual respect between spouses by making slanderous accusations. In  
the alternative, he sought divorce on the grounds of the irretrievable breakdown of the marriage.  
On 13 July 2018 the family-affairs judge of the Versailles tribunal de grande instance found that none  
of the complaints raised by the couple had been substantiated and that the divorce could not be  
granted on grounds of fault. Considering, however, that the applicant’s health issues were capable  
of justifying the couple’s long-term lack of sexual relations, he granted the divorce on the grounds of  
the irretrievable breakdown of the marriage, having found that the couple had not been living  
together for more than two years at the time the divorce proceedings had been initiated.  
The applicant appealed against that judgment.  
On 7 November 2019 the Versailles Court of Appeal granted the divorce, attributing fault solely to  
the applicant, on the grounds that her continued failure to have sexual relations with her husband,  
which could not be justified on health grounds, constituted a “serious and repeated breach of  
marital duties and obligations, making it impossible to continue in a state of matrimony”.  
The applicant appealed on points of law.  
On 17 September 2020 the Court of Cassation rejected the applicant’s appeal on points of law,  
considering that the grounds relied on were not manifestly such as to entail the setting aside of the  
Versailles Court of Appeal’s judgment.  
Complaints, procedure and composition of the Court  
Relying on Article 8 (right to respect for private and family life), the applicant complained about the  
fact that her divorce had been granted for fault, on the grounds that she had failed to fulfil her  
marital duties.  
The application was lodged with the European Court of Human Rights on 5 March 2021.  
Judgment was given by a Chamber of seven judges, composed as follows:  
María Elósegui (Spain), President,  
Mattias Guyomar (France),  
Armen Harutyunyan (Armenia),  
Stéphanie Mourou-Vikström (Monaco),  
Gilberto Felici (San Marino),  
Kateřina Šimáčková (the Czech Republic),  
Mykola Gnatovskyy (Ukraine),  
and also Victor Soloveytchik, Section Registrar.  
Decision of the Court  
Article 8  
The applicant did not complain about the divorce, which she had also sought, but rather about the  
grounds on which it had been granted.  
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The Court considered that the reaffirmation of the principle of marital duties and the fact that the  
divorce had been granted on the grounds that the applicant had ceased all sexual relations with her  
husband amounted to interferences with her right to respect for private life, her sexual freedom and  
her right to bodily autonomy.  
In the present case, the Court noted that the legal basis for the divorce had been Articles 229 and  
242 et seq. of the Civil Code, which provided that a fault-based divorce could be granted where  
evidence of a serious and repeated breach of marital duties and obligations was attributable to one  
of the spouses and led to the irretrievable breakdown of the marriage.  
It noted that under the Court of Cassation’s long-standing but consistent case-law, spouses were  
subject to marital duties and failure to fulfil them could constitute a fault justifying divorce. In that  
connection, the Court of Cassation had confirmed, in a judgment of 17 December 1997, that “a  
wife’s prolonged failure to have sexual relations” could justify the granting of a fault-based divorce  
where this “was not justified on sufficient medical grounds”. Although the Court of Cassation had  
not reaffirmed this case-law in the meantime, there had been no departure from it, and it continued  
to be applied by the lower courts. The Court concluded that the interferences complained of had  
been based on well-established domestic case-law.  
As to the legitimacy of the aim pursued, the Court recognised that the purpose of the interferences  
complained of, which related to the right of each spouse to terminate the marriage, was linked to  
the “protection of the rights and freedoms of others” within the meaning of the Convention.  
The Court’s task was to determine whether the domestic courts had struck a fair balance between  
the competing interests at stake.  
In the first place, the Court did not exclude the possibility that obliging a spouse to remain married  
despite the finding that there had been an irretrievable breakdown of the marriage could, in certain  
circumstances, amount to an excessive interference with his or her rights. The Court noted,  
however, that, in so far as the interferences in question affected one of the most intimate aspects of  
private life, the margin of appreciation afforded to the Contracting States in this area was narrow.  
Only particularly serious reasons could justify interferences on the part of the public authorities in  
the area of sexuality.  
In the present case, the Court noted that the concept of “marital duties”, as set out in the domestic  
legal order and reaffirmed in the present case, took no account whatsoever of consent to sexual  
relations. In that connection, the Court reiterated that any non-consensual act of a sexual nature  
constituted a form of sexual violence. The Court noted that failure to fulfil marital duties could, in  
the conditions provided in Article 242 of the Civil Code, be considered a fault justifying the granting  
of a divorce. It also noted that it could entail pecuniary consequences and, in certain circumstances,  
serve as a basis for a claim for damages.  
The Court concluded that the very existence of such a marital obligation ran counter both to sexual  
freedom and the right to bodily autonomy, and to the Contracting States’ positive obligation of  
prevention in the context of combating domestic and sexual violence.  
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.  
In any event, the Court could not identify any particularly serious reason capable of justifying an  
interference in the area of sexuality. It noted that the applicant’s husband could have petitioned for  
divorce, submitting the irretrievable breakdown of the marriage as the principal ground, and not, as  
he had done, as an alternative ground.  
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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.  
It followed that there had been a violation of Article 8 of the Convention.  
Just satisfaction (Article 41)  
The Court held that the finding of a violation constituted sufficient just satisfaction.  
The judgment is available only in French.  
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The European Court of Human Rights was set up in Strasbourg by the Council of Europe member  
States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights.  
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