The Price of Freedom: Compensation upon Divorce as a Means of Ensuring Justice for the Breach of «Marital Obligations»

The article is devoted to a comprehensive study of the legal nature of compensation upon divorce as a tool for ensuring justice and protecting the legitimate expectations of spouses. The relevance of the work is determined by the liberalization of divorce proceedings, which, while guaranteeing absolute freedom of divorce, leaves socially and economically unprotected the party who sacrificed their professional development for the sake of the family. The use of the economic theory of understanding marriage allowed proving that the conscious refusal of one of the spouses from career growth in favor of running a household leads to the irretrievable loss of their human capital. It is substantiated that the reimbursement of these economic losses acts exclusively as a measure of protection based on the principle of distributive justice. Since the current legislation of Ukraine provides only fragmentary judicial mechanisms for leveling such an imbalance, contractual regulation is recognized as the optimal tool for mitigating risks, allowing spouses to preventively consolidate material guarantees. Special attention is paid to the compensation of moral damage, which is considered as a measure of civil liability based on the principle of corrective justice. It is proved that the basis for its recovery is not the very fact of family breakdown or the initiation of divorce, but exclusively proven culpable behavior (adultery, psychological abuse, humiliation of dignity), qualified as a tort and a direct encroachment on the personal non-property rights of a person. The analysis of the advanced law enforcement experience of France, Turkey, and the People’s Republic of China confirms the expediency and effectiveness of applying tort claims between spouses upon divorce. As a result of the study, the conceptual inconsistency of the draft Civil Code of Ukraine, which protects the expectations of persons upon the termination of an engagement but ignores the deep suffering of spouses upon the destruction of a long-term union, is revealed. A conclusion is formulated on the necessity of a systematic implementation into the national legislation of clear algorithms for the monetization of lost human capital upon divorce and the expansion of grounds for tort liability for the violation of the fundamental personal rights of a spouse.