Marriage is not consent. The legal position explained
Marriage does not create any obligation to have sex. France has now put this beyond doubt in law, confirming that refusing sex cannot amount to divorce fault. The change aligns civil law with modern principles of consent, bodily autonomy and human rights.
This article explains what has changed in France, why it matters legally, and what it signals for divorce and family law practice in England and Wales.
What exactly has France changed?
In early 2025, the French National Assembly approved legislation clarifying that:
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Marriage creates no obligation to engage in sexual relations
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A lack of sexual relations cannot be relied upon as fault in divorce proceedings
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Civil law must reflect consent-based understandings of intimacy and autonomy
The purpose of the reform is not symbolic. It removes long-standing ambiguity that had allowed intimate behaviour to be scrutinised and penalised in civil divorce proceedings.
Why was this clarification necessary?
For decades, French civil law described marriage as a community of living. Although sex was never mentioned in statute, some courts interpreted this phrase broadly enough to imply a sexual duty.
That interpretation had real consequences.
In a widely criticised case in 2019, a wife was found at fault in her divorce because she had refused sexual relations for several years. Her refusal was treated not as a lawful personal boundary, but as a breach of marital obligation.
The case ultimately reached the European Court of Human Rights, prompting a fundamental reassessment of how civil law interacts with consent.
The European Court’s position – consent is ongoing
In H.W. v France (2025) – 13805/21, the Court was unequivocal.
Consent to marriage does not amount to consent to future sexual relations.
The judges held that penalising a spouse for refusing sex breached the right to respect for private life under Article 8 of the European Convention on Human Rights. They also warned that treating marriage as continuing sexual consent risks hollowing out the legal concept of marital rape.
This reflects the position under English criminal law, where consent must be freely given and can be withdrawn at any time, regardless of marital status, as recognised in guidance published by the Crown Prosecution Service.
The ruling exposed a contradiction that could no longer be sustained.
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Criminal law recognises that rape can occur within marriage
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Civil law had allowed refusal of sex to be punished indirectly through fault-based divorce, with potential financial consequences
The Court concluded that this position could not be justified in a modern democratic society.
What France’s new law actually does
This reform does not redefine marriage. It removes doubt.
In practical terms, it:
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Aligns civil divorce law with criminal law
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Reflects established human rights principles
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Confirms that bodily autonomy does not end on marriage
From a family law perspective, this is less a cultural shift than a long-overdue legal correction.
As Frank Arndt, Senior Partner at Paradigm Family Law, has observed, ‘marriage cannot operate as a private sphere in which consent is assumed once and for all. That assumption has now been decisively rejected.’
Why this matters in divorce and family law disputes
Across Europe, courts are increasingly reluctant to entertain fault-based arguments rooted in intimate conduct.
We are seeing clear judicial trends:
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Growing scepticism towards moralised narratives in divorce
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Judicial reluctance to police sexual or emotional dynamics
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Increased emphasis on autonomy, dignity and proportionality
For separating couples, the principle is clear. Personal boundaries are not misconduct, and withdrawal of intimacy is not a legal failing.
What are fault-based arguments?
Fault-based arguments are attempts to frame personal behaviour, such as refusal of intimacy, as blameworthy conduct in order to gain leverage in divorce proceedings, often with financial or strategic consequences.
This approach is increasingly viewed by courts as outdated and disproportionate.
The position in England and Wales
In England and Wales, the introduction of no-fault divorce has removed the formal requirement to assign blame.
However, fault-based thinking has not disappeared entirely.
Arguments about intimacy can still arise in solicitor correspondence, during financial remedy negotiations, or as leverage in high-conflict or controlling dynamics.
France’s reform, grounded in Strasbourg authority, reinforces a principle that resonates here. The law should not reward attempts to reframe personal autonomy as wrongdoing.
Rethinking marriage in modern family law
This development is not about weakening marriage. It is about understanding it accurately.
Modern marriage is a partnership between equals, not a licence to sexual access. When relationships break down, the role of family law is to resolve disputes fairly and proportionately, not to punish one party for asserting bodily autonomy.
As family law continues to evolve, long-standing assumptions are being tested against modern values. This clarification is part of that wider recalibration.
How can we help?
At Paradigm Family Law, we advise clients navigating separation, divorce and complex disputes with sensitivity to both legal principle and lived reality.
If you are facing fault-based arguments, coercive dynamics, or simply want clear, authoritative advice grounded in modern family law in England and Wales, our team can help you understand your position and your options.
We are always happy to have an initial, confidential conversation.
