Kuwait Court of Cassation principle number 33

Summary: - Rules to be followed concerning spouses’ financial rights where separation for harm is requested. The criterion for determining them. Article 130 of Law 51 of 1984. - Mistreatment by the husband or wife. Its effect. - Mutual mistreatment. Separation without compensation or with compensation proportionate to the mistreatment. - Inability to identify the spouse at fault. Its effect. - Compensation means mut‘ah. - Identifying the spouse at fault. A factual matter. Condition thereof. - Reasons for a judgment: when they are tainted by unsound inference. Basing the judgment on an understanding reached by the court contrary to what is established in the papers. Consequence: invalidity of the judgment. - The trial court’s adoption of the two arbitrators’ report which is insufficient to support the conclusion reached in the report, and its ruling on that basis. This vitiates its judgment with invalidating inadequacy. Rule: The effect of Article 130 of Law No. 51 of 1984 concerning Personal Status is that the legislature determined the rules to be followed concerning spouses’ financial rights where separation for harm is requested, taking mistreatment by either spouse of the other, mutual mistreatment, or inability to identify the spouse at fault as the criterion for determining those rights for each of them. If the mistreatment is by the husband, he is liable for all rights arising from marriage and divorce, unless he is the party seeking separation, in which case his action is dismissed. If all the mistreatment is by the wife, she is required to return the dower she received and forfeits all her financial rights arising from marriage and divorce. If mistreatment is mutual, they are separated without compensation or with compensation proportionate to the mistreatment. If the spouse at fault cannot be identified and the husband is the party seeking separation, his action is dismissed; if the wife is the party seeking separation, her request is granted without compensation. Compensation in this provision—as settled in the Court of Cassation’s case law—means mut‘ah. Determining whether separation is attributable to mistreatment wholly by the husband or the wife, mutual mistreatment, or inability to identify the spouse at fault is a factual matter independently assessed by the trial judge, provided that he bases his ruling on tenable reasons having an established basis in the papers and sufficient to support it. The reasons for a judgment are considered tainted by unsound inference if they contain a defect affecting the soundness of the deduction. This occurs where the court bases its conviction on evidence objectively unsuitable or on a failure to understand the elements established before it. If the trial court bases its judgment on an understanding it reached contrary to what is established in the papers, its judgment is invalid. Likewise, if the reasons on which the two arbitrators’ report was based are insufficient to support the conclusion reached in the report, and the trial court adopts the report and decides the case on its basis, its judgment is vitiated by invalidating inadequacy.