PROHIBICIÓN DE DIVORCIO EN PERSONAS CON DISCAPACIDAD E INCONSTITUCIONALIDAD DEL ARTÍCULO 126 DEL CÓDIGO CIVIL

Abstract

This study examines the unconstitutionality of Article 126 of the Ecuadorian Civil Code, a provision that prohibited the dissolution of a marriage when one spouse acquired an intellectual disability or deafness that limited verbal, written, or sign language communication. Using a qualitative approach and applying analytical, exegetical, and comparative methods, the research contrasts this provision with Article 110 of the same legal framework and with the principles of equality and non-discrimination enshrined in the Constitution of the Republic of Ecuador, the Convention on the Rights of Persons with Disabilities, and the American Convention on Human Rights. The analysis is based on Judgment No. 37-23-CN/25 of the Constitutional Court of Ecuador, which declared Article 126 unconstitutional on the grounds that it imposed an absolute restriction based solely on disability. The findings show that the provision resulted in indirect discrimination and infringed upon the right to the free development of personality. Accordingly, the study proposes reforming Article 126 by establishing a system of support measures and procedural safeguards to ensure the exercise of the right to divorce under conditions of equality