Feasibility assessment of the wife's divorce request in the case of involuntary refusal and inability of the husband to pay alimony (Criticism of Article 1129 of the Civil Code)

According to the final paragraph of Article 1129 of the Civil Code, a spouse who is unable to pay alimony is placed in the same category as a non-restrained spouse who is unable to pay alimony at the beginning of the aforementioned article, and in both cases, the wife is granted the right to file for divorce.

The question that can be raised is whether there is any difference between a capable and restrained spouse and a incapable restrained spouse whose heart is in paying alimony and who has made an effort to provide it, and whose reason for his restraining is only poverty and need?

Although the application of the theory proposed in Article1129 that the wife has the possibility of filing a divorce lawsuit simply because the husband is unable to pay alimony is in agreement with the opinion of a minority of jurists, the well-known theory of jurists is that the husband’s inability to pay alimony does not permit the dissolution of the marriage by the wife or the judge, nor does it permit the right to request a divorce for her. The correct jurisprudential theory is that the wife is not permitted to request a divorce or dissolution, and the distinction between the non-incapable and the incapacitated spouse is unclear, and the practice of the courts in this regard is also inconsistent and scattered.

In this article, by criticizing the basic jurisprudential theory of Article1129, the theory of a group of jurists who believe in the distinction has been strengthened, firstly, because it is more important to respect the strength of the family, secondly, because there is no permanent connection between not receiving alimony and the wife’s hardship, and thirdly, because of the possibility that the wife will be in more hardship after the divorce .