divorce
27 January 2025 by Rosalind English
It may come as a surprise that there still exists a country or countries in the enlightened West which do not regard sexual intercourse without consent within marriage as rape – or at least sexual assault. After a long campaign in this country, the courts of England and Wales finally capitulated in October 1991, recognising marital rape as a crime in the landmark case of R v R [1991] UKHL 12. In his judgement, Lord Lane confirmed: “The idea that a wife consents in advance [i.e. by being married] to her husband having sexual intercourse with her whatever her state of health or however proper her objections, is no longer acceptable.”
This was a long cry from the position that had held before, best expressed by Justice Henry Hawkins in 1888, that
“The intercourse which takes place between husband and wife after marriage is not by virtue of any special consent on her part but is mere submission to an obligation imposed on her by law.”
Now comes a judgement against France that shows that in some pockets of the Council of Europe, the old rule still applies, even if the criminal law has established the possibility of rape within marriage.
H.W. c. FRANCE (Requête no 13805/21)
The judgment is presently only available in French, so I give a fairly detailed summary below.
Background facts
In July 2015, the applicant sued her husband for divorce on the grounds of fault. She claimed that he had prioritised his professional career over their family life and that he had been irascible, violent and hurtful. Her husband counterclaimed that the divorce be granted on the grounds of the applicant’s exclusive fault, arguing, among other things, that she had failed in her marital duties for several years. Alternatively, he requested a divorce on the grounds of permanent breakdown of the marital relationship.
In a judgment of July 2018, the family court judge of the high court considered that none of the spouses’ claims were substantiated and that the divorce could not be granted on the grounds of fault. He granted it on the grounds of permanent breakdown of the marital relationship.
The applicant appealed this judgment. In November 2019, the Court of Appeal granted a divorce for fault, the exclusive fault of the applicant, on the grounds that she had acknowledged having ceased all intimate relations with her husband since 2004, which constituted a serious and repeated violation of the duties and obligations of marriage, making the continuation of their life together intolerable. [my italics]
The applicant’s appeal on points of law was dismissed in September 2020.
Background law
The divorce was granted pursuant to the relevant articles of the French Civil Code, which provide that a divorce may be granted for fault when facts constituting a serious or repeated breach of the duties and obligations of marriage are attributable to one of the spouses and make the continuation of the common life intolerable.
It follows from the long-standing but consistent case law of the Court of Cassation that spouses are bound by a marital duty and that its failure to perform may constitute a fault justifying divorce. Although the high court has not reaffirmed this case law since then, it has never been reversed and continues to be applied by the lower courts.
French case law does not consider every refusal to have sexual relations to be wrongful. It leaves it to the lower courts to determine whether this refusal is sufficient to characterise a serious or repeated breach of the duties and obligations of marriage justifying divorce. It also acknowledges that certain circumstances such as the age, state of health or abusive or violent nature of the spouse are such as to justify the failure to perform the marital duty. Domestic law gives trial judges the power to assess whether or not the breach of a matrimonial obligation is serious enough to justify divorce.
In this case the Strasbourg Court upheld the wife’s application, finding a breach of her right to private life under Article 8 of the Convention.
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28 February 2022 by Guest Contributor
Statement as ‘conclusive evidence’
The European Convention 1950 guarantees the right to a fair trial. Everyone knows that. At article 6.1 the Convention says:
Right to a fair trial
1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law….
What everyone does not know is what is a ‘civil right’. And in the present context – namely divorce of civil partnership dissolution – do you have a right to query the assertion of your spouse or civil partner that your marriage or civil partnership has irretrievably broken down?
The Divorce, Dissolution and Separation Act 2020 simplifies the divorce and civil partnership dissolution process by changing the law to make irretrievable breakdown – as now – the only ground for divorce or dissolution. But to prove that, there was no longer any need to establish one or more facts: adultery (marriage only), unreasonable behaviour or living apart for varying periods. One, or both, parties can file a statement of irretrievable breakdown. The procedure for this is likely – no commencement date has been confirmed – to be in force from 6 April 2022. All so far so civilised.
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24 February 2020 by Rosalind English
According to Jewish religious law, if a husband refuses to grant his wife a divorce (a “get”) she has no recourse to the Jewish authorities for a certificate and must either be content with a civil divorce, or remain a “chained woman” or “argunot”. One of the consequences of this system is that any child she may have by a subsequent relationship is considered a “manner”, or illegitimate.
For the first time in legal history Anthony Metzer QC of Goldsmith’s Chambers has used the secular criminal law to persuade a recalcitrant husband to grant his client a “get”, the threat of a prosecution for the offence of coercive and controlling behaviour leading to a maximum prison sentence of five years. This is a fascinating breakthrough and has implications not only for other “chained women” in Jewish communities but in the wider world of religious traditions where women are often the victim of unfair religious laws.
Rosalind English discusses the implications of this case with Mr Metzer QC in this week’s episode (No. 103) of Law Pod UK. You may want to refresh your memories on the use of the offence of criminal and coercive behaviour in proceedings in the family courts by listening to Rosalind’s interview with Clare Ciborowska of 1 Crown Office Row in Episode 43.
Law Pod UK is available on Spotify, Apple Podcasts, Audioboom, Podbean, iHeart, Radio Public, Deezer or wherever you listen to our podcasts.
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16 September 2015 by Rosalind English
DL v SL [2015] EWHC 2621 (Fam) 27 July 2015 (Mostyn J) – read judgment
This was a simple, if contentious, divorce case in which the judge took the opportunity to make a point about balancing the principle of open judgment – allowing media coverage of cases – against the privacy of the parties involved. Whilst he was ready to acknowledge that publicity ensures not only the probity of the judge but the veracity of the witnesses, and that such publicity served promote understanding and debate about the legal process, in some cases privacy should trump the rights of the press.
There are many cases which are heard publicly, or privately with the media in attendance, but where, by a process of anonymisation, the privacy of the parties, and of their personal and other affairs, is sought to be preserved. This compromise, or balance, between open justice and the privacy of the individual has arisen for two reasons. First, the increased recognition that is given to the interests of children who are caught up in the dispute between the adult parties. And secondly, the rise of the idea that privacy is an independently enforceable right.
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20 October 2010 by Adam Wagner
Radmacher (formerly Granatino) (Respondent) v Granatino (Appellant) [2010] UKSC 42 On appeal from the Court of Appeal [2009] EWCA Civ 649 – Read judgment / press summary
The Supreme Court has ruled by an 8-1 majority (Lady Hale dissenting) that a court should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless, in the circumstances prevailing, it would not be fair to hold the parties to their agreement.
The court robustly dismissed Mr Granatino’s appeal against a Court of Appeal decision to enforce his pre-nuptial agreement with Ms Radmacher. The agreement provided that if they were to separate, he would receive none of her considerable independent wealth.
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29 July 2010 by Adam Wagner
Tchenguiz & Ors v Imerman [2010] EWCA Civ 908 (29 July 2010) – Read judgment
The Court of Appeal has ruled that secretly obtained documents can no longer copied and then used in divorce proceedings, overturning a rule dating back almost twenty years. The case will have a significant impact for divorcing couples, but has the court left itself open to a Supreme Court reversal on human rights grounds?
The appeal related to the divorce proceedings between Vivian and Elizabeth Imerman, in which Mrs Imerman’s brothers brothers had downloaded documents from Mr Imerman’s office computer in order to prove that he had more assets than he had disclosed to the court. Mr Justice Moylan ruled in the High Court that seven files of documents should be handed back to Mr Imerman for the purpose of enabling him to remove any material for which he claimed privilege. Mr Imerman appealed against the decision that he would then have to give the documents back, and Mrs Imerman argued that she should be given more control over the privilege process.
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