Incorporación del divorcio incausado en el Ecuador desde la perspectiva del derecho comparado: casos España y México

In the Ecuadorian legal system there are two types of divorce, one by mutual consent and another by contentious way. The latter requires the existence and demonstration of a cause for its origin, a situation that has currently brought various problems in cases in which only one of the spouses requests the termination of the marriage bond and the other opposes, among which they find affectations to the physical, psychological, social, emotional and economic integrity of the spouses and, above all, of the minor children, since often before the impossibility of demonstrating a cause that fits the situation of the spouses opt for home abandonment, which sharpens these affectations for the family. In this sense, throughout the present work a study will be carried out on the inefficiency of resorting to the grounds of divorce, in order that any of the spouses can end the marriage bond without the need to resort to the expression of a cause. This type of divorce has already been adopted by other countries such as Spain and Mexico, where it has been recognized that this institute is an aspect of the private life of people in which the State cannot intervene. In Spanish legislation, there is also the theory of the unilateral withdrawal of the marriage contract, which considers that the termination of the marriage bond must be carried out in the same way as the other obligations are extinguished, which would include the possibility of terminating the marriage contract. Marriage through unilateral withdrawal, since the fact that one of the spouses comes before the jurisdiction to demand the termination of the marriage implies the absence of the purposes for which the same has been constituted, and this link may be terminated. Through the analysis of comparative legislation and the current situation in Ecuador, the need to incorporate uncaused divorce into Ecuadorian legislation will be demonstrated in order to guarantee the protection of family rights.