Conjugal duties and Art. 8 ECHR – a partially critical commentary on the judgment of the ECtHR of 23 January 2025, application no. 13805/21, H.W. v. France

Abstract

The purpose of this commentary is to assess the judgment of the ECtHR of 23 January 2025, in the case of H.W. v. France (application no. 13805/21) from the perspective of private law and privacy protection standards. The Court found that attributing sole blame for the breakdown of the relationship to the applicant on the grounds of her long-standing refusal to have sexual relations constituted a disproportionate interference with the sphere of sexual autonomy guaranteed by Art. 8 of the ECHR. The commentary approves of the individual outcome (protection of autonomy and consideration of health factors), while at the same time criticizing the ECtHR’s generalized reasoning, which brings the criteria of criminal law focused on a specific sexual act closer to the civil law assessment of fault for the breakdown of a marriage relating to a broad temporal aspect. The author argues that cohabitation should be treated as a fact that may be relevant to fault in the reality of a specific marriage, rather than as an enforceable obligation; hence, the appropriate standard of adjudication should consist of a circumstantial assessment with a clear filter of consent, violence, and safety. It is advisable to use common sense reasoning that is also appropriate to the age of the spouses, the reasons for the long-term refusal, and the length of time during which there has been no sexual intercourse. It cannot be assumed that the issue of marital relations has the same significance for 20-year-olds as it does for, say, 80-year-olds who enter into a marriage usually dictated by needs other than sexual ones. Practical guidelines have been proposed for French and Polish courts (focusing on facts rather than obligations; no presumption of guilt for refusal alone; strengthening the role of the Istanbul Convention in justifications).