Judicial Review of Divorce Decisions
There is no way out of the divorce catastrophe except by extending judicial oversight over divorce and khula (wife-initiated divorce) rulings.
Society should not be forced to bear the consequences of such decisions, based on Article 9 of the Constitution, which states: “The family is the foundation of society... The law preserves its integrity, strengthens its bonds, and protects motherhood and childhood under its auspices.” This foundational principle reaches its zenith in Article 10, which aims to care for and protect the younger generation from exploitation, shielding them from moral, physical, and spiritual neglect. Yet, there are tormented souls and exhausted children’s bodies, a result of the legislator’s prolonged failure to provide adequate protection.
The legislator intervened by mandating genetic testing to prevent marriage; why should the state not intervene to monitor divorce, especially when the arbitration mechanism between the parties is not activated as a preventive measure against its occurrence?
A legislative amendment is proposed, granting the Family Prosecution the authority to investigate the causes of divorce, replacing the arbitrators appointed by the marriage contract parties. Their opinion would be subject to judicial oversight, with the court issuing a final, binding ruling to either approve or reject the divorce or khula decision.
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The younger generation is in dire need of their constitutionally guaranteed right to protection from neglect.
Furthermore, the proposed legislative amendment would empower the court to impose fines on the party responsible for breaching their contractual obligations and to compensate the aggrieved party. It would also oblige the breaching party to repay any state incentives received for marriage.
Marriage is not an end in itself, but serves societal objectives that preserve life, lineage, intellect, religion, and wealth. These five essential necessities are difficult to achieve without legislative intervention, especially after all other remedies have lost their effectiveness in curbing divorce, which has become a troubling phenomenon for everyone.
The judiciary proposes monitoring the integrity of the spouses’ will and the true purpose behind separation decisions, as we do not live in isolated enclaves but in societies that suffer from such decisions.
Moreover, most administrative decisions subject to judicial review are not as significant as those involving family dissolution. Additionally, many separated individuals later regret their decisions. Therefore, it is proposed that the state and society protect them from themselves by providing social support, which is their right. If marriage is their right, divorce is not. Unless there are compelling reasons that make cohabitation impossible, the court must be convinced that the public interest justifies granting the divorce.
A Kuwaiti writer
