Kuwait Court of Cassation principle number 51

Summary: - Import of Article 130 of Law No. 51 of 1984 concerning Personal Status: determination of the rules to be followed concerning the spouses' financial rights where separation is sought on grounds of harm. Its criterion: identifying the offending spouse, or whether the wrongdoing is mutual, or the offender is unknown. - Establishment that the wrongdoing is the husband's. 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 the wrongdoing is entirely the wife's, she is required to return the dowry she received and forfeits all her financial rights arising from marriage and divorce. - If the wrongdoing is mutual, they are separated without compensation or with compensation proportionate to the wrongdoing. - If the offender is unknown and the husband seeks separation, his action is dismissed. If it is the wife, her claim is granted without compensation. - Compensation means the consolatory payment upon divorce. - Determination of the offender. A matter of fact. Condition thereof. - Grounds of a judgment. When they are considered vitiated by defective reasoning. - The judgment's ruling that the wrongdoing was entirely on the wife's part, based on the testimony of the husband's 2 witnesses, although the testimony of one did not include his having witnessed incidents of wrongdoing by her against the husband. Defective reasoning leading to an error in applying the law, requiring its cassation. Rule: The import of Article 130 of Law No. 51 of 1984 concerning Personal Status—as held in the jurisprudence of this Court—is that the legislature determined the rules to be followed concerning the spouses' financial rights where separation is sought on grounds of harm, taking wrongdoing by either against the other, mutual wrongdoing, or inability to identify the offending spouse as the criterion for determining each spouse's rights. If the wrongdoing is the husband's, 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 the wrongdoing is entirely the wife's, she is required to return the dowry she received and forfeits all her financial rights arising from marriage and divorce. If the wrongdoing is mutual, they are separated without compensation or with compensation proportionate to the wrongdoing. If the offending spouse is unknown and the husband seeks separation, his action is dismissed; if it is the wife, her claim is granted without compensation. Compensation in this provision—as settled in the jurisprudence of this Court—means the consolatory payment upon divorce. Determining whether the wrongdoing is on the part of either spouse or both, or whether the offender cannot be identified, is a question of fact within the trial judge's sole purview, provided that the judgment is based on reasonable grounds having a basis in the papers and sufficient to support it. The grounds of a judgment are considered vitiated by defective reasoning if they contain a defect affecting the soundness of the inference. This occurs if the court bases its conviction on evidence that is objectively unsuitable, on a failure to understand the elements established before it, or on a contradiction between those elements, as where the conclusion reached by the court does not logically follow from those elements. That being so, the first-instance judgment, upheld by the challenged judgment, after granting the appellant an irrevocable divorce from the respondent on grounds of harm and extinguishing all her financial rights arising from marriage and divorce, ordered her to return the dowry she had received, on the basis that the wrongdoing was entirely on her part, relying in that regard on the testimony of the respondent's 2 witnesses. The testimony of his 2 witnesses did not conclusively establish that the wrongdoing was entirely on the appellant's part, since the second witness's testimony did not include his having witnessed incidents of wrongdoing by the appellant against him. The judgment's inference in this respect is therefore vitiated by defective reasoning that led it to err in applying the law, requiring its cassation insofar as it ordered the appellant to return the dowry.