In a landmark ruling, the European Court of Human Rights (ECHR) has overturned a decision by French courts that blamed a wife for the breakdown of her marriage due to her alleged refusal to engage in sexual relations with her husband.
This case, which spanned over 25 years of marriage, highlights significant issues regarding marital rights and human dignity.
The wife initiated divorce proceedings in 2012, citing her husband’s increasing violence, bad temper and neglect of family responsibilities. In response, her husband counterclaimed, alleging that she had not fulfilled her marital duties, specifically by withholding sexual intimacy from him. The French divorce court was required to ascertain fault for the divorce.
The judge accepted the husband’s claim that the wife caused the divorce by withholding sex. The wife appealed. Despite the wife’s appeal, the French courts ruled against her, ultimately declaring her at fault for the marital discord and divorce. The wife escalated her claim to the European Court of Human Rights.
The ECHR ruled unanimously in her favour on January 23, 2025, finding that France had violated her right to respect for private and family life. The court stated it could not identify any reason capable of justifying such interference by public authorities in matters of sexuality. It held that agreeing to marry does not amount to agreeing in advance to sexual relations for the duration of the marriage, and that the notion of an enforceable “marital duty” fails to account for the role of consent.
This ruling sets a crucial precedent across Europe. It clarifies that personal autonomy, including sexual autonomy within marriage, must be safeguarded under human rights conventions. The decision landed amid broader reckoning in France over sexual consent following the high-profile trial of Gisèle Pelicot, whose ex-husband was convicted of drugging her and inviting other men to rape her over nearly a decade. The ECHR’s stance emphasizes that no individual should be coerced or penalized within marriage for choices regarding their own body and intimate life.
Would this Happen in Canada?
Notably, Canada has no fault-based ground resembling the old French one. The Divorce Act provides that the granting of a divorce is based on a breakdown of their marriage which is established in one of three ways: (i) living separate and apart for at least one year (ii) adultery or (iii) physical or mental cruelty of “such a kind as to render intolerable the continued cohabitation of the spouses” A spouse’s refusal to have sex is not a basis for blame or a ground for divorce.
But that’s not quite the end of the story because Canada does have a legal mechanism where sex, or the absence of it, may have some relevant in court proceedings: An annulment.
Annulment and Non-consummation
Interestingly, non-consummation is a recognized ground for annulment. An annulment is a different legal animal from a divorce. A divorce ends a marriage that validly existed. An annulment is a declaration from the court that says, legally, no valid marriage existed.
In Ontario parties can seek an annulment under the Annulment of Marriages Act. This statute provides that the law of England on July 15, 1870 relating to the annulment of marriages is the law in Ontario (a nice reminder of the origins of our common law system). The Act does not set out the circumstances under which an annulment can be granted; this has been developed by the common law.
An annulment is based on a cause existing at the time of the marriage (i.e.. a prior existing marriage, relationship within the prohibited degrees, insanity at the time of marriage). Depending on the ground of annulment, either declares that there never was a valid marriage or dissolves it with retroactive effect (ex tunc).
The criteria for annulment on the basis of non-consummation is narrower than people might often assume. As Her Honour Justice Presser set out in S.M. v R.F. 2025 ONSC 4155, it turns on 2 central questions:
- whether the marriage was consummated; and
- whether one or both of the parties were incapable of consummation, as opposed to merely wilfully refusing to consummate:
Taken together, both cases draw a clear boundary around marriage and what it does (and doesn’t) obligate two people to give each other. A spouse cannot be found at fault for withholding sex, and a marriage cannot be annulled simply because one spouse would rather not have it.
CASES LINK:
https://www.reuters.com/world/europe/french-divorcee-who-stopped-having-sex-with-husband-wins-appeal-european-court-2025-01-23 S.M. v R.F. 2025 ONSC 4155
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