Kuwait Court of Cassation principle number 39

Summary: - Consolatory compensation was prescribed to make good the desolation caused by a husband to the woman from whom he has separated, and consoling her is part of the magnanimity required by Sharia. In Article 165/2 of Law No. 51 of 1984 concerning Personal Status, the legislature specified the moderate standard for assessing and paying consolatory compensation unless the parties mutually agree upon it. Its calculation shall not exceed 1 year’s maintenance. - The exceptional cases in which consolatory compensation is not due are divorce with the wife’s consent, at her request or for a reason attributable to her, the husband’s insolvency, or the calamity of death. Article 165/b of Law 51 of 1984. - Determining the existence or absence of the wife’s consent to divorce. A matter of fact independently determined by the trial judge. The condition thereof. - The husband’s effecting divorce by his unilateral will without the wife’s consent. Entitles her to consolatory compensation. An example. Rule: The import of Article 165 of the aforementioned Law—as disclosed by the Law’s Explanatory Memorandum—is that the basis for prescribing consolatory compensation is to make good the desolation caused by a husband to the woman from whom he has separated, and that consoling her is part of the magnanimity required by Sharia. The legislature specified in paragraph (m) of the said Article the moderate, acceptable standard for determining and paying consolatory compensation—unless the parties mutually agree otherwise—as calculating its amount on the basis of the husband’s circumstances at the time of entitlement, provided that the compensation does not exceed 1 year’s maintenance. In paragraph (b) of the same Article, it specified the exceptional cases in which consolatory compensation is not due, on the basis that there is neither desolation nor pain in a divorce effected with the wife’s consent, and no occasion for consoling her if the separation was at her request or for a reason attributable to her, or upon the husband’s insolvency or the calamity of death. It follows that the husband’s effecting divorce by his unilateral will without the wife’s consent entitles her to consolatory compensation, and that determining the existence or absence of the wife’s consent to divorce is a question of fact independently determined by the trial judge whenever his judgment rests upon sound grounds sufficient to support it. That being so, and as the record establishes that the respondent divorced the appellant by a revocable divorce and did not take her back until her waiting period expired—which indicates his exercise of his right to divorce by his unilateral will—and the record contains no evidence of her consent, she is therefore entitled to consolatory compensation to make good her desolation from this divorce in the manner stated above. As the judgment under appeal departed from this view by dismissing this part of the action, it must be set aside. As it is established that the respondent is financially well-off, according to his salary certificate submitted in the record, the appellant’s claim for consolatory compensation therefore rests upon a valid basis and must be granted by ordering the respondent to pay her consolatory compensation for 1 year, taking into account the duration of the marriage that existed between her, as stated in the operative part.