La figura del divorcio incausado y su relación con el derecho al libre desarrollo de la personalidad

Abstract

The present study seeks to determine whether the adoption of no-fault divorce inEcuador is compatible with the right to free personal development and legal certainty, as well as its manifestations based on constitutional principles. The issue lies intheconfrontation between the right to freedom of decision regarding the dissolution of themarital bond and the duty to protect the family as the nucleus of society. Theobjective is to determine whether the disregard of these rights results fromtheadoption of no-fault divorce and to conclude whether or not it is incompatible withtheEcuadorian legal framework. The methodology is based on a qualitative, descriptive-documentary approach, complemented by a comparative analysis of the legislation of countries such as Spain, Chile, and Mexico, among others. The study led to the conclusion that, althoughnofault divorce promotes individual autonomy, it also creates uncertainty inthedynamics of marriage, affecting legal certainty and leaving the weaker partyunprotected, particularly in terms of legal and emotional dependence. The results indicate that the unilateral dissolution of the marital bond based on an objective causedoes not allow for a fair balance between the parties nor does it protect the interest of the family as an institution, which undermines the principles of substantive equalityand the right to legal certainty. Ecuadorian constitutional jurisprudence has established that rights must be exercisedprogressively and in harmony, without harming the rights of third parties or distortingthe institution of marriage as contemplated in Article 67, second paragraph of theConstitution, and Article 81 of the Civil Code. Therefore, in conclusion, the adoptionof no-fault divorce in Ecuador is not compatible with the constitutional framework.