Uncaused Divorce: An Urgent Normative Update

Abstract

Since its origins in Ecuador, the civil figure of divorce has followed a causal system. In order for the judge to dissolve the marriage, some factual evidence required by the law has to be verified and proven. Unsurprisingly, these legal requirements restrict the dissolution and reduce the problem to a probatory issue. Nevertheless, this system was introduced in Ecuador more than a hundred years ago. Nowadays, the causal system is incompatible with a State that enhances freedom and individual autonomy as one of its core legal values. The freedom to decide who to be. To assess this issue, the present study pretends to propose an alternative yet optimum solution: an uncaused and unilateral divorce. Nothing should be proven or justified, since the State is no creditor of such intimate explanations. Its role does not consist in taking personal decisions for its citizens. Instead, it must protect individuals so they can freely make their own choices about their personal life. Therefore, an uncaused and unilateral divorce is congruent and respectful with fundamental constitutional rights such as the right to the unhindered development of the personality, the right of the individuals to familiar harmony and privacy, besides enhancing, above all, the autonomy of the will. It is necessary to introduce it in the Ecuadorian legal system to reconcile the institution of marriage with the deeply desired freedom.