Suggested citation: A. Pera, Diritto d’Amore e consenso nei rapporti matrimoniali in Francia. La sfera intima, l’amore fisico e il divorzio per colpa al vaglio della Corte EDU, in lceonline, 2/2026, I/Saggi e contributi, p. 1 ss.
Key words: ECHR, right to private and family life, divorce on grounds of fault, self-determination, marital duties
Abstract: The recent proposal to reform the French Civil Code (January 2026), together with the landmark ruling of the European Court of Human Rights in the case of H.W. v. France (January 23, 2025), marks the end of the traditional conception of the marital bond as a source of an enforceable obligation to engage in sexual intimacy. The ruling in question found that the attribution of fault for the divorce ‒ based on a spouse’s refusal to engage in sexual relations ‒ constituted a violation of the right to respect for private and family life (under Article 8 of the ECHR). According to the Strasbourg judges, such conduct amounts to a disproportionate interference with the individual’s self-determination and sexual freedom. The core of the decision lies in the recognition that consent to sexual intercourse cannot be presumed to exist ipso facto merely because of the establishment of the marital relationship. The Court’s legal reasoning is structured around two essential arguments: 1) the inadmissibility of the presumption of consent, whereby the marital bond does not imply a legal presumption of bodily availability; rather, individual autonomy prevails over the structure of the institution of marriage; 2) the rejection of the punitive approach, whereby divorce on grounds of fault is condemned as a punitive measure for the failure to comply with presumed implicit marital duties, affirming the principle of the inviolability of the human body.
