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GROUNDS FOR DIVORCE AND RELATED MATTERS

Article by Pamela A. Evangelou

Grounds for Divorce:


Article 111 (2) (B) of the Constitution of the Republic of Cyprus (the “Constitution”) provides the following in relation to the grounds of divorce:


1) the provisions of the Statutory Charter of the Greek Orthodox Church are adopted insofar as they do not oppose the provisions of the Constitution.


2) Grounds for divorce include the “Irretrievable Breakdown” of the marriage


3) Any other grounds that may be determined by law.


Dissolution of Marriage:


In the case of civil weddings, the concerned party can file a divorce petition at any time before the Family Court in the district where he/she lives.


For religious weddings, a divorce application may be filed only after the expiration of three months from the date of receipt of an appropriate Notice of Dissolution of Marriage by the competent Bishop, notifying of the concerned party’s intention to file for divorce and listing the proposed grounds for divorce.


The application to dissolve the marriage will need to be submitted to the Family Court in the province where the parties ordinarily reside. In case of a religious marriage, the application must be accompanied by proof of posting of the aforementioned Notice to the Bishop.


Irretrievable Breakdown as grounds for divorce:


When the relationship between the spouses is so strongly shaken by a reason which concerns the person of the defendant or both spouses that the continuation of the marital relationship is justifiably unbearable for the plaintiff.


This reason for divorce presupposes the existence of a breakdown event which concerns the other spouse or both spouses, and shakes the marriage to such an extent that the continuation of the marital relationship is rendered unbearable for the plaintiff.


Reasons that can lead to such irretrievable breakdown can be a difference in character, age, education or social background, the serious illness of the spouse to the extent that is illogical to expect the other spouse to stay married and support the spouse, or any reason that can be attributed to the other spouse such as physical or verbal violence, extramarital affairs or abandonment of the spouse.


The breakdown event must be connected to the breakdown of the marriage. If the breakdown event take place after the spouse has already moved out it cannot be considered a breakdown event since the breakdown preceded the event and was thus attributable to other reasons[i].


The reason must concern the other spouse or both spouses[ii], and should justifiably make cohabitation unbearable[iii]. The test for this is both objective and subjective. From an objective lense, It should be considered whether the continuation of the marriage exceeds the limits of mental endurance that one would expect from an average person of the plaintiff's spiritual and cultural level. The criterion for evaluating the plaintiff's reactions to the marriage and the admissibility of the request for dissolution is objective and depends on the judgment of the right-thinking third party. From a subjective lens, at the same time, the breakdown reason should have indeed caused the marriage to breakdown for that spouse.

In the case of Zachariou v Zachariou[iv] the offensive attitude of the wife towards the husband which consisted in insulting him in a way that affected his honor and dignity and in attributing to him homosexual tendencies and relations with a third party and a similar offensive attitude of the husband which attributed to the wife extramarital relations with same third person. A divorce was granted for the reason of that the marriage underwent a strong shock, i.e. an irretrievable breakdown from a reason concerning both parties.


In another decided case, the husband's persistent belief that his wife had extramarital affairs, which he declared without restraint, and the wife's frequent insults, as well as the wife's reckless behavior, which not only failed to thwart her husband's suspicions and his behavior, but intensified them, a divorce was granted for the reason of the strong breakdown due to a reason that concerned both parties[v].


Excessive jealousy may also constitute valid grounds to claim irretrievable breakdown as were the facts in a case where the jealous behavior of the wife beyond the tolerable usual limits, the individual or public accusations against the husband that he had an affair with his subordinate who also happened to be a relative and the continuous display of public scenes of jealousy[vi].


Other cases where irretrievable breakdown was acknowledged were where the husband was repeatedly insulted leading to his expulsion from the marital home, without the wife then expressing the desire for the husband to return home[vii] and the confirmation by one spouse towards the other spouse that he / she committed adultery[viii].


It is further provided[ix] in the law that the continued separation of the spouses for at least four years constitutes a strong shock/breakdown of the marital relationship and the divorce may be granted even if the reason for the breakdown only concerns the plaintiff. The completion of the period is not hindered by small breaks made in the context of efforts to restore the relations between the spouses, provided these do not exceed six months[x]. When there is a continued separation for at least 4 years, no other grounds need to be proven.


An irretrievable breakdown will be presumed in cases of bigamy, adultery, desertion, an attempt against the spouse’s life, or a sex change by one of the spouses, unless there is evidence to the contrary.


The Statutory Charter of the Greek Orthodox Church:


The Charter was replaced in 2010 and the provisions of the grounds for divorce have been removed from it. However, this does not affect the constitutional regulation which refers to the reasons included in the 1979 Charter, which include the following:


a) Adultery;

(b) The immoral, dishonorable or other reprehensible misconduct of the other spouse which results in the breach of the marital relationship and makes the cohabitation unbearable for the unmarried spouse.

c) Intrusion in the life of the other spouse, including abuse or misconduct that may cause mental and physical distress.

d) Mental illness that has been present for more than three years.

e) The conviction of the other spouse to seven years in prison.

f) The obscurity of the other spouse.

g) The inability of the other spouse to perform his/her marital duties.

h) Unjustified abandonment for two years.

i) The change of religion or dogma (which appears to contradict article 18 of the Constitution).

j) The persistent obstruction childbearing despite the unconditional desire of the other spouse.


Separation and “Living apart”:


When two spouses are living under the same roof this can create a dilemma as to whether they actually maintain two households.


In the case of Le Brοck[xi], the wife had evicted her husband from her bedroom and put a latch on the door and they stopped communicating except for the absolutely necessary but she continued to cook for him and he continued to pay a weekly amount for expenses. It was considered by the court that the couple was not living apart.


In Mouncer[xii] the parties' relations were bad and they slept in separate bedrooms. However, they usually ate together and the wife did the housework. It was considered that they lived in a common household and therefore lived together.


In the case of Fuller[xiii] the couple ceased to live together in 1964. In 1968 the husband suffered a heart attack and his wife allowed him to settle in the house in which she lived with her new partner. The wife was cooking and washing for her husband and he was giving her a weekly allowance. It was considered that the spouses did not live in the same household. The court stated in its decision: "Living with each other" the parties must also be living with each οther as husband and wife, rather as lοdger and landlady ”.


Even if the spouses do not live together this does not mean that there is no dilemma. In the case of Santos[xiv] it was decided that couples who do not live together are considered to not meet the requirement of "living apart" when their intention is to share the same home when conditions allow. So in order to be considered not living together (in the sense of ‘living apart’) one of the two must consider that the marriage is over but without having to share this view with the other spouse.


Law Regulating Property Relations of Spouses


The Family Courts have the authority to grant exclusive use of the family home or possessions pending divorce, but the application for divorce will primarily concern the dissolution of the marriage. Separate applications will need to be filed concerning potential property disputes and maintenance. The division of property is governed by the Law Regulating Property Relations of Spouses (Law 232/1991). "Property" means the movable and immovable property acquired before the marriage with the prospect of marriage or at any time after the marriage has been entered into by any of the spouses. "Contribution" means any form of a spouse's contribution to the acquisition or creation of property and includes taking care of the family home and family members. Therefore, a contribution is not only monetary. It can be an in kind contribution. Being a housewife (or househusband) is considered a contribution.


Article 14.1 of Law 232/1991 provides that in case the marriage is dissolved or annulled or in case of separation of the spouses and the property of one spouse has increased, the other spouse, if he contributed in any way to this increase, is entitled to apply to the Court and to claim the return of the part of the increase which comes from his own contribution. In furtherance, Article 14.2 of Law 232/1991 provides that in the absence of evidence to the contrary, the contribution of one spouse to the increase of the other's property is presumed to amount to one third (1/3) of the increase. It is up to the parties to prove a greater or lesser contribution.


Based on Article 14.3 of Law 232/1991, the increase of property of the spouses does not include property acquired from a donation, inheritance, bequest or other gratuitous cause or with the disposal of property acquired for these reasons.


If there are debts, they will be deducted from the (value) of the property to find its net increase[xv]. Property acquired by a spouse after the separation, is not included in the calculation of property, even if it occurs prior to the official dissolution of marriage[xvi]

[i] ΛΟΥΚΑΪ́ΔΟΥ v ΠΕΤΡΌΠΟΥΛΟΥ (2000) 1 ΑΑΔ 1619 [ii] ΖΑΧΑΡΙOΥ v ΖΑΧΑΡΙOΥ (1993) 1 ΑΑΔ 159 [iii] ΖΑΧΑΡΙOΥ v ΖΑΧΑΡΙOΥ (1993) 1 ΑΑΔ 159 [iv] ΖΑΧΑΡΙOΥ v ΖΑΧΑΡΙOΥ (1993) 1 ΑΑΔ 159 [v] ΧΡΊΣΤΟΥ v ΛΕΩΝΊΔΟΥ (1993) 1 ΑΑΔ 986 [vi] ΣΟΦΡΩΝΊΟΥ v ΠΑΝΤΑΖΉ (1998) 1 ΑΑΔ 805 [vii] ΔΑΝΟΎ v ΔΑΝΟΎ (1998) 1 ΑΑΔ 829 [viii] ΜΟΣΧΆΤΟΥ v ΜΟΣΧΆΤΟΥ (1999) 1 ΑΑΔ 785 [ix] ARTICLE 14 (A) OF THE FAMILY LAW COURTS LAW 1990 [x] ΖΈΝΙΟΥ v ΖΈΝΙΟΥ (2002) 1 ΑΑΔ 445 [xi] LE BRΟCK v LE BRΟCK [1964] 1 W.L.R. 1086 [xii] MOUNCER v MOUNCER [1972] 1 WLR 321 [xiii] FULLER v FULLER [1973] [xiv] SANTOS v SANTOS [1972] [xv] ΟΡΦΑΝΙΔΗΣ Ν. ΟΡΦΑΝΙΔΗ (1998) 1 ΑΑΔ 179 [xvi] ΤΣΟΎΝΤΑ Ν ΔΗΜΗΤΡΙΆΔΗ

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