The end of the conjugal duty: towards the absolute recognition of spouses’ sexual freedom

The Convention does not expressly enshrine sexual freedom. Nevertheless, the Court’s case law has progressively recognised that this right lies at the very heart of the protection guaranteed by Article 8 of the Convention, which relates to respect for private and family life. This development rests upon an evolutive and dynamic interpretation of the Convention. Because of the deliberately general and open-ended character of its provisions, the Court is able to adapt its content to social transformations and to changing conceptions of society, family, and sexuality.Footnote ² In this context, the interplay between private and family life has become the legal foundation for the recognition of sexual autonomy as an essential component of personal fulfilment. The Court has affirmed that the freedom to engage in consensual sexual activity cannot be dissociated from the protection of human dignity,Footnote ³ the free development of one’s personality,Footnote ⁴ and the capacity to establish and develop emotional and intimate relationships according to one’s own choices.Footnote ⁵ More specifically, the Court’s jurisprudence underscores that sexual freedom and bodily self-determination constitute intrinsic and inseparable elements of the right to private life.Footnote ⁶ Accordingly, Article 8 of the Convention must be interpreted not only as protecting sexual freedom in its own right,Footnote ⁷ but also as enshrining the fundamental right of every individual freely to dispose of their bodyFootnote ⁸ and to exercise full sexual self-determination.Footnote ⁹ By emphasising this centrality, the Court highlights the role of sexual freedom in safeguarding personal identity and individual intimacy. The major lesson to be drawn from this evolution is that sexual freedom has become an indispensable dimension of individual autonomy. It is conceived as the power of each person to decide, in complete freedom, the sexual relations they accept or refuse, regardless of the partner and independently of any social or institutional norm.Footnote ¹⁰ Sexuality is thereby detached from a logic of obligation or duty – particularly in the marital context – and reintegrated into a framework of consent and personal choice. This development illustrates a broader movement towards the subjectivisation of the right to respect for private and family life. The latter is no longer conceived merely as the protection of the domestic sphere or of the traditional family framework, but as a genuine instrument of individual emancipation.Footnote ¹¹ In this sense, the Court has redefined the legal status of sexual freedom within a framework grounded in autonomy, dignity, and free consent, thereby contributing to the anchoring of this right as a fundamental component of European democracy.

This shift is particularly significant in the context of marriage. Historically, Western European legal systems, drawing inspiration from canon law, had conceptualised marriage as a union grounded in reciprocal duties, among which the conjugal duty figured prominently. This conception was rooted in a logic of subordinating individual wills to the social and religious imperatives attributed to the matrimonial institution.Footnote ¹² In theory, when a man and a woman entered into marriage, their legal identities were merged: they became one and the same person in the eyes of the law, in accordance with the principle of ‘conjugal unity’. Within this construction, the legal existence of the woman was suspended during marriage, absorbed and incorporated into that of her husband, under whose authority and protection she carried out all acts.Footnote ¹³ This principle of conjugal unity had direct consequences for the definition of sexuality within marriage. Sexuality was reduced to its procreative function and confined within the moral framework of marriage, such that the deliberate refusal of sexual relations was equated with a breach of matrimonial duties, since it undermined the ‘true purposes’ of marriage.Footnote ¹⁴ From this logic stemmed a central immunity attached to marriage: the exemption of marital rape. The traditional doctrinal argument was that, by marrying, a woman had once and for all consented to sexual availability towards her husband. He was thereby vested with a ‘natural’ sexual authority, legally and morally unfettered within the marital framework.Footnote ¹⁵ Conjugal unity thus operated as a transfer of the legal identity – and, in particular, the sexual identity – of the wife to the husband. The wife was reduced to the status of an object of law, while the husband became the exclusive bearer of rights. This unequal dialectic, long justified in the name of a supposed spousal symbiosis, was in reality illusory: far from uniting the spouses into a single person, it institutionalised a radical asymmetry.

In light of the evolution of contemporary societies and the growing affirmation of equality and dignity as fundamental values, the Court has broken with the traditional conception of marriage inherited from the principle of ‘conjugal unity’. It now affirms that marriage is not a sphere of institutionalised sexual constraint, but rather a framework that must guarantee spouses full equality of rights and freedoms, including within the intimate sphere.Footnote ¹⁶ Within this logic, consent – rather than duty – has become the cornerstone of sexual relations in marriage. This conceptual rupture entails a positive obligation imposed upon states: they must not only criminalise non-consensual sexual acts but also ensure their effective repression through appropriate penal instruments.Footnote ¹⁷ No exception may be tolerated on the basis of the marital bond. This principle marks a major development: the Court has declared unequivocally that marriage cannot justify an exemption from, or attenuation of, criminal liability in cases of sexual assault.Footnote ¹⁸ It has held that:

By this statement, the Court underscores that marital rape constitutes a crime against the liberty and security of the individual. Genuine consent can never be presumed from the marital or relational context: it must be freely expressed and continuously revocable. In a context where the community or the state tolerates marital rape, consent is not merely compromised; it is legally and morally impossible to infer.Footnote ²⁰ Accordingly, the criminalisation of marital rape requires more than the mere abandonment of the principle of ‘conjugal unity’. It also entails adopting a definition of rape centred on the absence of consent, in which no presumption of sexual availability can be admitted, irrespective of the marital or para-marital framework.Footnote ²¹ This development constitutes a true paradigm shift. The Court moves beyond an institutional and patriarchal conception of marriage, grounded in the notion of conjugal duty, to enshrine an emancipatory vision centred on individual autonomy. The sexual freedom of spouses is recognised as an absolute right, incapable of limitation by virtue of the marital bond. In other words, marriage does not create a legal regime of exception: it is situated within the common framework of the protection of fundamental rights, whose pillars are dignity, liberty, and equality. The lesson to be drawn is therefore twofold. At the normative level, the Court affirms the obligation upon states to adopt clear and effective legislation criminalising marital rape and prohibiting any presumption of consent. At the symbolic level, it contributes to the redefinition of marriage as a community of freedom and equality, and no longer as a space of sexual domination or institutionalised constraint.

Until now, the Court had addressed the sexual dimension of relations between spouses solely through the prism of domestic violence.Footnote ²² Its intervention was thus confined to sanctioning the most serious criminal interferences, particularly characterised sexual violence. With the judgment in HW v France (2025), the Court has taken a decisive step: it establishes that sexual freedom deserves full protection against any form of interference, including of a civil nature. This decision marks a major conceptual rupture. The focus of the analysis is no longer merely on repressing sexual violence within marriage, but on affirming sexual freedom as an absolute attribute of individual autonomy, inalienable even within the conjugal framework. Consequently, marriage cannot be regarded as a space in which the fundamental rights of spouses are subordinated to inherited social norms. Rather, it must be understood as a framework of equality, guaranteeing both partners the same rights and freedoms, including with respect to their sexual choices. In this sense, HW v France breaks with a centuries-old legal tradition, particularly entrenched in French matrimonial law, whereby the notion of the conjugal duty imposed an implicit obligation of intimacy and permitted the presumption of permanent sexual consent between spouses.

For a long time, the French legal system was premised upon an implicit presumption that consent to sexual relations was inherent in the matrimonial contract itself. Marriage was conceived as a legal framework in which the wife’s sexual availability was presumed, thereby diminishing her capacity to exercise an autonomous refusal. In HW v France, however, the Court directly dismantled this presumption. It affirmed the necessity of explicit, free, and renewed consent for each sexual act, irrespective of the marital bond existing between the partners. The Court stated unequivocally that it ‘cannot accept, as suggested by the Government, that consent to marriage entails consent to future sexual relations’.Footnote ²³ This pronouncement is of fundamental importance, for it explicitly enshrines the idea that marriage can in no way restrict an individual’s ability to control their own body or to refuse sexual relations, regardless of social expectations or matrimonial commitments. By rejecting any presumption of automatic consent, the Court invalidated the ‘marital privileges’ which had historically served to justify a hierarchy of sexual rights within the couple. In other words, the Court dispensed with the traditional distinction between marital and extramarital sexual relations. In both settings, a single guiding principle prevails: sexual relations require free and genuinely renewed consent. Marriage does not confer upon one spouse a reciprocal right over the body of the other, but is founded solely upon a voluntary commitment that cannot be construed as a permanent obligation of physical intimacy. The notion that the matrimonial union entails a presumption of sexual acceptance is therefore radically incompatible with the principles of the Convention.Footnote ²⁴ Through this judgment, the Court elevated sexual freedom to the status of an absolute, irreducible, and autonomous right, the protection of which extends to all spheres of conjugal and intimate life. It thereby contributes to a redefinition of marriage, no longer as a contract of mutual duties, but as a space of shared freedoms, grounded in mutual respect and the equality of spouses.

The judgment in HW v France is grounded in a particularly exacting conception of sexual consent, understood as inseparable from the precise moment and the specific circumstances of each intimate act. From this perspective, consent can neither be presumed nor inferred from past events, including marriage: it must be freely and clearly expressed at the very moment of the sexual interaction. In this respect, the Court emphasised that ‘consent must reflect the free will to engage in a specific sexual act, at the time it takes place and in the light of its circumstances’.Footnote ²⁵ In other words, even within a long-standing marriage, sexual consent must be constantly renewed and remains liable to be revoked or altered in accordance with the will of each partner and the context of the interaction. The objective is to make sexual union not an institutional obligation, but a source of personal fulfilment in the short, medium, or long term.Footnote ²⁶

This approach forms part of the broader dynamic of the ‘sexual revolution’,Footnote ²⁷ structured around two cardinal notions. The first is sexual equality, which prohibits any discrimination based on sex, sexual conduct, or sexual orientation. The second is sexual security, understood as the duty incumbent upon both the state and individuals to ensure safe sexual relations. While this encompasses the prevention of risks associated with sex, it also includes the guarantee of the freedom to consent to the sexual act.Footnote ²⁸

These conceptual shifts have led the Court to take a major turn in the protection of fundamental rights in the conjugal context. Marriage can no longer be conceived as an institution in which individual freedoms – most notably sexual freedom and bodily autonomy – are subordinated to a conjugal duty. National courts must, particularly in divorce proceedings, respect the integrity and autonomy of the spouses. This development paves the way for a reconsideration of fault-based divorce regimes founded on grounds relating to sexual life, which now appear difficult to reconcile with fundamental rights insofar as they restrict the sexual freedom and free will of married persons.

Fault-based divorce grounded in the refusal of sexual relations: an intrusive judicial interference in intimate life and bodily autonomy

In HW v France, the applicant did not contest the dissolution of the marriage as such – indeed, she herself had sought it – but rather the legal characterisation adopted to grant divorce at her exclusive fault. The crux of the dispute did not therefore concern the termination of the marital bond, but the judicial recognition of her sexual abstinence as a civil fault. By sanctioning her refusal to engage in sexual relations, the French courts considered it to constitute a ‘serious and repeated breach of the obligations of marriage’ rendering cohabitation ‘intolerable’.Footnote ²⁹ This solution reflected a long-standing and consistent line of jurisprudence according to which spouses are bound by a ‘conjugal duty’, that is, an obligation to engage in sexual relations. Within this conception, prolonged abstinence could amount to a fault where it was not medically justified. It could even give rise to a right to damages, on the basis that sexual relations were viewed as an expression of the mutual affection between spouses and as forming part of the bundle of matrimonial obligations.Footnote ³⁰ Article 242 of the French Civil Code, which permits divorce in cases of a ‘serious or repeated violation of the duties and obligations of marriage’ rendering ‘cohabitation intolerable’, had long served as the legal foundation for this approach.

According to the French Government, the rationale for treating sexual abstinence as a marital fault was not to impose a legal duty upon spouses to engage in sexual relations. Rather, it was to acknowledge the reality of the harm suffered by one spouse and, on that basis, to justify the dissolution of the marriage. In other words, the aim was not to compel spouses to engage in imposed sexual activity, but to provide a legal basis for the termination of a marriage characterised by the prolonged absence of sexual relations. Without denying that the facts at issue constituted an interference with the right to respect for private life, the Government nevertheless argued that such interference was ‘prescribed by law’. In this regard, it relied on Articles 229 and 242 of the Civil Code, which permit divorce on the grounds of a ‘serious or repeated violation of the duties and obligations of marriage’ rendering ‘cohabitation intolerable’. In support, it also invoked Article 215 of the same Code, under which ‘spouses owe each other a community of life’, a notion traditionally interpreted as encompassing a ‘community of bed’. While acknowledging that no express provision of the Civil Code requires spouses to engage in sexual relations, the Government maintained that such an obligation flowed from settled case law. Accordingly, by entering into marriage, spouses freely consented not only to the union itself but also to the duties arising therefrom, among which was the conjugal duty as interpreted by the French legal tradition. On this basis, the prolonged refusal of sexual relations could legitimately be characterised as a serious breach, warranting the pronouncement of divorce at the exclusive fault of the defaulting spouse.

Such an approach, however, exposes the full ambiguity of the conjugal duty. On the one hand, it confers upon the judge the power to interfere directly in the most intimate sphere of marital life, by making it an object of judicial scrutiny. On the other, it tends to reduce the sexual freedom and bodily autonomy of spouses to mere matrimonial obligations, the breach of which would amount to a civil fault. In this framework, consent to the sexual act is effectively neutralised, since the refusal of sexual relations becomes, in principle, a punishable breach. The judgment in HW v France dismantles precisely this logic. The Court held that ‘the reaffirmation of the conjugal duty and the fact of pronouncing divorce on grounds of fault on the basis that the applicant had ceased all intimate relations with her husband constituted interferences with her right to respect for private life, her sexual freedom, and her right to bodily autonomy’.Footnote ³¹ Through this statement, the Court recalled that the right to private life cannot be subordinated to an implicit matrimonial obligation and that each individual must be able freely to dispose of their own body, without their intimate choices being subject to legal sanction. The Court underscored that the legal characterisation adopted by the French courts did far more than recognise the impossibility of maintaining cohabitation. It converted voluntary abstinence into a marital fault, with attendant legal consequences and a concomitant exposure of the applicant to social and moral censure. By condemning this approach, the Court affirmed the primacy of sexual freedom and individual autonomy. It recalled that intimate life belongs exclusively to the realm of personal choice and cannot serve as a basis for sanctions within fault-based divorce proceedings.

The Court emphasised that the granting of a fault-based divorce on the ground of refusal of sexual relations constitutes a particularly intrusive interference in the individual’s intimacy. By touching upon one of the most sensitive aspects of private life, such a decision infringes the fundamental right of each person freely to dispose of their body and to define the conditions of their intimate life. Since sexuality is a matter of strictly personal choice, any judicial sanction of sexual abstinence must be regarded as a direct violation of the principle of individual freedom. In this respect, the Court underlined that ‘the conjugal duty, as it is set out in the domestic legal order and as it was reaffirmed in the present case …, in no way takes account of consent to sexual relations, even though such consent constitutes a fundamental limit to the exercise of another person’s sexual freedom’.Footnote ³² By this observation, the Court denounced a conception of fault-based divorce which, under the guise of protecting the rights of the petitioning spouse, imposes a coercive norm upon the sexuality of the partners and disregards the cardinal principle of free, informed, and renewed consent. The Court went further, describing the findings of the French Court of Appeal as ‘particularly stigmatising, in that the refusal expressed by the applicant was regarded as a “serious and repeated” breach of the obligations of marriage rendering cohabitation “intolerable”’.Footnote ³³ This assessment shows that the domestic judge went beyond a simple acknowledgment of the breakdown of cohabitation. He legally disqualified a personal choice by equating it with a transgression of matrimonial duties. Abstinence was thus transformed into a civil fault, burdened with disproportionate moral censure and detached from the logic of protecting individual freedoms. The central lesson to be drawn is that the dissolution of marriage cannot justify judicial intrusion into the intimate sphere of the spouses. No argument concerning the preservation of a supposed marital balance can legitimise a challenge to the fundamental principle that each individual remains the master of their intimacy and sexuality. In other words, the Court reaffirmed that sexual freedom constitutes an absolute right: it cannot be restricted by marriage, by social expectations, or by the prism of civil litigation.

The Court stressed that the protection of the husband’s rights could have been secured by other means, without resorting to a punitive approach to divorce. The French courts preferred a traditionalist reading of marriage, grounded in implicit sexual obligations, even though a solution more respectful of individual freedoms was legally available. In the present case, the same outcome – the dissolution of the marriage – could have been achieved by resorting to divorce on the ground of the irretrievable breakdown of the marital bond.Footnote ³⁴ This mechanism, provided for in Article 238 of the French Civil Code, allows for divorce once it has been established that the marital community has ceased for at least two years. Unlike fault-based divorce, it does not rest upon a moral assessment of conjugal behaviour and does not stigmatise either spouse. By highlighting this alternative, the Court observed that the French state possessed a legal framework enabling the dissolution of marriage without infringing the applicant’s fundamental rights. Accordingly, the characterisation of her conduct as ‘fault’ was neither necessary nor proportionate.Footnote ³⁵ In other words, the Court accepted that a marriage may be dissolved on the basis of the complete and irretrievable breakdown of cohabitation, independently of the responsibility of either party. This analysis thus redefines the very rationale of divorce law. It is no longer conceived as a mechanism for safeguarding the institution of marriage through the sanctioning of marital fault, but as a legal framework that recognises the dissolution of a civil contract when the spouses no longer intend to honour its commitments. Such reasoning entails a genuine demystification of marriage. Stripped of its moral underpinnings inherited from conjugal unity, marriage is conceived as a free commitment, the continuation of which depends exclusively on the will of the parties. Under this conception, family law no longer takes precedence over the individual: it is the intimate and personal choices of the spouses that determine the future of the union, rather than a normative conception imposed by the state.

The judgment in HW v France exposes a structural contradiction within French law. On the one hand, criminal law affirms the absolute principle of consent by criminalising marital rape; on the other, civil law maintains the conjugal duty, which undermines that same principle through the mechanism of fault-based divorce. For the Court, such duality is untenable, all the more so since the very existence of the conjugal duty, as a prescriptive norm, constitutes a structural violation of sexual freedom and the right to bodily autonomy. Protection against domestic and sexual violence cannot be effective so long as civil law continues to uphold an implicit obligation of sexual availability, thereby undermining the principle of consent. More concretely, the Court observed that ‘the obligation in question [the conjugal duty] does not guarantee free consent to sexual relations within the couple’, insofar as ‘this rule of law has a prescriptive dimension with respect to spouses in the conduct of their sexual life’.Footnote ³⁶ Sexuality is thus elevated into a legal obligation rather than preserved as a free and individual choice.

This obligation has direct consequences. Under Article 242 of the Civil Code, a refusal to engage in intimate relations may constitute a fault justifying divorce and may trigger pecuniary sanctions, thereby turning voluntary abstinence into a civil fault carrying patrimonial liability. From these considerations, the Court concluded that ‘the very existence of such a matrimonial obligation is both contrary to sexual freedom and to the right to bodily autonomy, and to the positive obligation of prevention incumbent upon Contracting States in combating domestic and sexual violence’.Footnote ³⁷ The critique is thus directed less at the concrete application of the rule than at its very existence: by erecting a prescriptive norm governing the sexual life of spouses, domestic law institutes a structural source of vulnerability incompatible with the Convention. Finally, the Court rejected the French Government’s argument that the criminalisation of sexual assaults was sufficient to ensure protection of rights. It considered, on the contrary, that ‘this criminal prohibition does not suffice to deprive the civil obligation established by case-law of its effects’.Footnote ³⁸ By maintaining such an obligation, France perpetuates a normative contradiction: it criminalises sexual violence under criminal law while simultaneously preserving, in civil law, a presumption of sexual availability. This duality, the Court concluded, runs ‘counter to the progress achieved in criminal law, as well as to the international commitments undertaken by France to combat all forms of domestic violence’.Footnote ³⁹

From a doctrinal perspective, it is noteworthy that the Court did not rely on Article 14 of the Convention, even though the rule at issue – the conjugal duty – has an evident gendered dimension. The Court’s position may, of course, be explained by the fact that the applicant had based her claim exclusively on Article 8. Nevertheless, the discriminatory character of a rule combining the conjugal duty with civil sanctions deserved discussion, particularly since the applicant had invoked allegations of domestic violence to justify her refusal of sexual relations. The absence of any reference to Article 14 highlights a limitation in the Court’s reasoning: by focusing exclusively on the protection of sexual freedom as an autonomous right, the Court partially obscures the gendered and discriminatory dimension of the case. Article 14 could have been mobilised to demonstrate the discriminatory character of an obligation which, although formally applicable to both men and women, in practice disproportionately affects women. Historically, it is women who have been prosecuted and sanctioned on this basis, notably in fault-based divorce proceedings linked to sexual abstinence.Footnote ⁴⁰ The interference thus assumes a concretely discriminatory dimension, insofar as it perpetuates a patriarchal logic whereby the wife is the principal debtor of the conjugal duty.

From this perspective, recourse to Article 14 would not have been superfluous. Its invocation would have strengthened the guarantee that the right to sexual freedom protected by Article 8 must be enjoyed without discrimination. This would have allowed the Court to move from purely formal equality towards substantive equality, by combatting stigma, stereotypes, and prejudice.Footnote ⁴¹ The Court has already developed an ‘anti-stereotypes’ approach in its jurisprudence, recognising that gender stereotypes are both the cause and the manifestation of structural disadvantage suffered by women.Footnote ⁴² It has emphasised that progress towards gender equality constitutes an essential objective for Council of Europe member states, and that only particularly weighty reasons may justify a difference in treatment.Footnote ⁴³ In this vein, the Court has held that it is impermissible to adopt laws or practices that rest upon stereotypes or perpetuate traditions assigning women a secondary role within the family.Footnote ⁴⁴ It has consistently ruled that references to ‘traditions’, ‘general assumptions’, or ‘prevailing social attitudes’ cannot, in themselves, justify a difference in treatment based on sex.Footnote ⁴⁵ The traditional gendered division of roles, which assigned domestic and childcare responsibilities to women and financial support to men, cannot constitute a sufficient foundation for the legitimacy of a legal rule.Footnote ⁴⁶

European jurisprudence has even extended this reasoning: sexual orientation and gender identity have been brought within the ambit of Article 14, in combination with Article 8.Footnote ⁴⁷ The Court has held that it is impermissible under the Convention to promote one type of family at the expense of another, as this risks creating the discrimination prohibited by Article 14.Footnote ⁴⁸ This extension demonstrates that the anti-discrimination logic is not confined to traditional gender stereotypes, but applies equally to all forms of family and sexual diversity. In this sense, the critique of the conjugal duty is fully consistent with this jurisprudential dynamic, which seeks to protect autonomy and individual dignity by dismantling prescriptive norms imposed by the state or by tradition. While HW v France established sexual freedom as an autonomous right under Article 8 of the Convention, its doctrinal development calls for the integration of Article 14, in order to reveal the gendered dimension of this obligation and to strengthen the critique of its incompatibility with the Convention.