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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.