Consensual Arbitration in Spouse Separation for Harm Caused: A Jurisprudential Legal Case Study
Prof. Abdul Hamid Al- Baali
Professor of Islamic Law in Kuwait International Law School
Abstract:
This is a commentary on the judicial decision regarding consensual arbitration in spouse separation for harm. The research is based on the premise that woman is the family’s and society’s foundation, which in turn are based on religion and morality as established in the shari’a and the constitution as well as provided for to a great extent in the Kuwait Family Law No. 51 of 1984. Avoiding the drawbacks of other family laws, Kuwait’s family law was amended to regulate judicial spouse separation for harm through arbitration in articles 126 through 135. This puts the Kuwaiti law in line with the Islamic Shari’a provisions, makes it more favorable to the family, and responding to the contemporary issues. This is elaborated in the following examples:
1- Separation request is not limited to the wife but is also made available to the husband although he can divorce his wife.
2- Requesting separation is available before intercourse to avoid further damage to spouses.
3- Repetition of the complaint is not required for appointing arbitrators.
4- Ear-witnessing to the harm occurred is admissible.
This article recommends that the legislature completes reforming the law by adopting the consensual arbitration and making the arbitrators’ opinions enforceable, since the law’s related articles regulate judicial separation only.