CAUZA H.W. V. FRANŢA: ARTICOLUL 8 AL CONVENŢIEI EUROPENE A DREPTURILOR OMULUI. OBLIGAŢIA CONJUGALĂ CONTRARĂ LIBERTĂŢII SEXUALE ŞI DREPTULUI DE A DISPUNE DE PROPRIUL CORP
H.W. V. FRANCE CASE: ARTICLE 8 OF THE EUROPEAN COURT OF HUMAN RIGHTS. MARITAL OBLIGATION CONTRARY TO SEXUAL FREEDOM AND THE RIGHT TO CONTROL ONE'S OWN BODY

Summary/Abstract: This article outlines new dimensions of the right to private and family life under Article 8 of the European Convention on Human Rights. Fundamental concepts essential to the individual from the perspective of this article - private life, sexuale relations, marriage, family, cohabitation – create a new context on which the judges of the European Court of Human Rights must rule in answering complicated questions. Does a wife have a conjugal obligation to maintain intimate relations with her husband? Does this conjugal obligation emphasize the absence of consent in sexual relations between spouses? Can we speak of the normative character of the rule of law with regard to the spouses in the conduct of their sexual life? Should the discretion of the State in such situations be restricted? Is this matrimonial obligation contrary to sexual freedom and the right to dispose of one's own body and to the positive obligation of prevention incumbent on the Contracting States to combat sexual violence? Does a refusal to comply have legal consequences? Can the national judicial authorities pronounce a divorce on grounds of fault to the sole detriment of the plaintiff on the ground that she has failed to fulfill her obligation to marry by refusing to have intimate relations? Should other possible means of safeguarding the husband's rights be provided for? Can the absence of relevant and sufficient grounds be characterized as a failure to strike a fair balance between the competing interests?

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