| Applicant name | H.W. |
| Applicant type | natural person |
| Number of applicants | 1 |
| Country | Rrance |
| Application no. | 13805/21 |
| Date | 23/01/2025 |
| Judges | María Elósegui, présidente, Mattias Guyomar, Armen Harutyunyan, Stéphanie Mourou-Vikström, Gilberto Felici, Kateřina Šimáčková, Mykola Gnatovskyy |
| Institution | Court |
| Type | Judgment |
| Outcome Art. 8 | violation |
| Reason | not necessary (rights and freedoms of others). |
| Type of privacy | Private life |
| Keywords | Sex in marriage |
| Facts of the case | The applicant complains that her divorce was granted on the grounds of fault, on the grounds that she had failed in her marital duties. She relies on Article 8 of the Convention |
| Analysis | The court awards a large margin of appreciation. The Court cannot accept, as the Government suggests, that consent to marriage implies consent to future sexual relations. Such a justification would be liable to deprive marital rape of its reprehensible character. The Court has long held that the idea that a husband cannot be prosecuted for the rape of his wife is unacceptable and 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. 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 does not discern, in the present case, any particularly serious reason capable of justifying an interference in the field of sexuality. It notes 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 the principal and not as a subsidiary claim, as he did in the present case. His rights could therefore have been defended by other means. From all the foregoing considerations, the Court concludes that the reaffirmation of marital duty and the granting of divorce solely on the grounds of the applicant’s fault 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 elements are sufficient to find a violation of Article 8 of the Convention. |
| Other Article violation? | – |
| Damage awarded | violation constitutes in itself just satisfaction |
| Documents | Judgment |