CAN DIVORCE GROUNDS BE CONSIDERED
AS REASONS FOR RECEIVING COMPENSATION
PURSUANT TO ARTICLE 388 OF THE CIVIL CODE?
We have to start from the idea that the divorce ground is a mixed one, of remedy and sanction. On the one hand, the divorce is the solution to a fact situation that cannot continue any longer because of the guilty facts that prejudiced the family relationship but also because of the fact that, from the perspective of the innocent husband (especially if he made efforts to save his marriage), the purpose of the marriage cannot be reached anymore. On the other hand, the pronounced divorce out of guilt is a sanction for the guilty husband.
The prejudice is caused by the dissolution of the marriage in case the divorce seems to be the only remedy for a life situation that cannot continue anymore because of the respondent’s guilty attitude. Therefore, the situation is the one in which the plaintiff husband does not want the divorce but he is “constrained by the circumstances” to claim for it to put an end to a fact state, to a conflict marriage or which cannot reach its purpose – to make a family. In this context, it is obvious that the dissolution of the marriage by itself will cause prejudice to the husband who wants to continue the family relationship.
Keywords: divorce grounds, compensation, prejudice, remedy-sanction, exclusive guilt.