Kuwait Court of Cassation principle number 26

Summary: - Consolatory maintenance. Its rationale: to redress the wife’s distress at separation from the one who parted from her and to console her. Article 165 of Law No. 51 of 1984. The husband’s effecting divorce by his unilateral will without the wife’s consent entitles her to a consolatory allowance even if the divorce was attributable to her. - Assessment of consolatory maintenance at an amount not exceeding 1 year’s maintenance. Cases excepted from entitlement to consolatory maintenance. Their nature. Rule: It is established—in the jurisprudence of the Court of Cassation—that Article 165 of Law No. 51 of 1984 concerning Personal Status provides that: “a) If a valid marriage is dissolved after consummation, the wife shall be entitled—in addition to maintenance during her waiting period—to a consolatory allowance assessed at no more than 1 year. b) The following are excepted from the preceding paragraph: 1- Judicial divorce for failure to provide maintenance due to the husband’s insolvency. 2- Separation on grounds of harm where attributable to the wife. 3- Divorce with the wife’s consent. 4- Annulment of marriage at the wife’s request or the death of either spouse.” This indicates, as disclosed by the Law’s Explanatory Memorandum, that the basis for prescribing the consolatory allowance is to redress the wife’s distress at separation from the one who parted from her and to console her, as part of the honourable conduct required by Sharia. In paragraph (b) of the Article, the legislature specified the exceptional cases in which the consolatory allowance is not obligatory, on the basis that there is no distress or pain in a divorce effected with the wife’s consent, and there is no occasion to console her where the separation is at her request, where the husband is insolvent, or where the calamity of death occurs. The consequence is that the husband’s effecting divorce by his unilateral will without the wife’s consent entitles her to a consolatory allowance even if the divorce was attributable to her. It is also established—in the jurisprudence of this Court—that the meaning of Article 165 of Law No. 51 of 1984 concerning Personal Status is that, if a valid marriage is dissolved after consummation, the wife is entitled—in addition to maintenance during her waiting period—to a consolatory allowance assessed at no more than 1 year’s maintenance. Certain cases are excepted, including separation on grounds of harm where attributable to the wife, and divorce with the wife’s consent. Separation on grounds of harm where attributable to the wife means separation on grounds of harm effected by a judge’s ruling pursuant to Article 126 of the aforementioned Law, which did not restrict the request for separation to the wife; rather, the husband may also request it, even though he possesses the power of divorce, so that a quarrelsome wife does not use her misconduct as a means of obtaining divorce from her husband without compensation, causing him substantial loss through waiting-period maintenance, deferred dower and the consolatory allowance. Opening the court’s doors to him to seek separation through it enables him to be relieved of these burdens and compensated for a divorce to which the wife’s misconduct compels him. That being so, the first-instance judgment, upheld by the challenged judgment, based its dismissal of the appellant’s request for a consolatory allowance on its stated reasons that, although the respondent divorced the appellant by his unilateral will, this was due to her misconduct in married life and the harm she caused him, and he was compelled to divorce her on 8/1/2012. It concluded from this that she was not entitled to a consolatory allowance because the divorce was attributable to her. However, it is established that the respondent divorced the appellant by his unilateral will without resorting to the courts to obtain separation on grounds of harm attributable to the wife so as to be relieved of its consequences. The papers contained nothing indicating the appellant’s consent to the divorce, thus entitling her to a consolatory allowance even if the divorce was attributable to her. As the challenged judgment departed from this view, it is defective for error in applying the law, requiring its partial cassation in this respect.