The Implementation of the Principle of Gender Equality within the Context of Jurisdictional and Legislative Connecting Factor: Marriage Dissolved Case Study.

Document Type : Original Article

Author

Professor of Private International Law - Department of International Law - Faculty of Law - Kuwait University.

Abstract

This study aims at showing the degree of consecration of the gender equality, as well as at prohibiting the legal gender discrimination in the jurisdictional and legislative connecting factor in the lawsuits of marriage dissolved that include a foreign element. The study adopts the analytical descriptive methodology relying on comparison to come up with some results. The most important of its outcomes is that the Kuwaiti legislator sought to protect the woman, through the rule of jurisdiction for being the weaker party. On the other hand, the law attributed the law of the man, as the strongest party, as a connecting factor in choice of law. Also, rules of jurisdictional and legislative connecting factor in the EU Treaties adopted equality stand by considering the regulations of nationality, and joint or previous residence. And Kuwaiti law adopted nationality as a connecting factor in the jurisdiction and legislative connecting factor, while EU treaties set out nationality and residence in this regard. Based on the previous outcomes, the study presents numerous recommendations among which is to amend the text of Article No 40 of Law No 5 of 1961 to guarantee gender equality marriage dissolved lawsuits especially when the couple are of different nationalities, so to attribute the issue to the law of the country of the residence, or the country of the last couple’s residence. 

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