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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1965) 1 CLR 252
1965 October 5
[VASSILIADES, J.]
CONSTANTINOS ANDREOU PETRIDES,
Petitioner,
v.
CHRYSTALLENI CONSTANTINOU PETRIDES
(OTHERWISE ALEXANDROU).
Respondent.
(Matrimonial Petition No. 16/61)
Matrimonial Causes-Dissolution of marriage-Husband's petition for dissolution of marriage on the ground of desertion-Matrimonial Causes Act, 1950 (14 Geo., 6, c. 25, section 1 (1) (b)-Constructive desertion-Wife-Respondent's conduct amounting to constructive desertion.
Matrimonial Causes-Arrears of alimony-Court's refusal to exercise its discretion in favour of husband-petitioner until satisfaction by him of an order for alimony-Husband's conduct in the exercise of Court's discretion.
Matrimonial Cause-Jurisdiction-Law applicable.
The petitioner husband applied for dissolution of the marriage between the parties on the ground of desertion. The original prayer in the petition filed on the 30th November, 1961, was for a declaration that the marriage was null and void. After considerable delay and suspense, the petitioner applied, in January, 1965, for amendments, the effect of which were practically to abandon the prayer for nullity and to substitute it by one for dissolution of the marriage, on the ground of desertion on the part of the respondent, i.e. the ground in section 1 (1) (b) of the Matrimonial Causes Act, 1950 (14 Geo., 6, c. 25).
Both parties are Greek-Cypriots of Famagusta, and they are related to each other within a degree prohibiting marriage between them in the Greek Orthodox Church to which both of them belong. The husband's domicil of origin is Cyprus.
In 1939, at the age of 23 the petitioner went to England and the respondent also went there soon after; and while in England, the parties were married at St. Pancras Register Office, London, on the 26th March, 1940. Their marriage was not solemnized in any Church.
In 1950, the petitioner filed divorce proceedings in England on the ground of adultery. The proceeding failed, as the petitioner did not satisfy the Court on the allegation of adultery. Following up her success in that litigation, the respondent took proceedings for maintenance before the Magisterial Court; and obtained an order, for her self and one of the children. In this connection, the respondent alleged that the petitioner is in arrear of payments under the Magistrate's order, amounting to over £300. But respondent's counsel was not able to give the exact figure, as he had not been supplied with a copy of the order; and did not have sufficient instructions from his client on the point.
On the facts of the case which are set out in detail in the judgment of the Court, the Court took the view that the marriage between the parties has completely broken down, and in effect has ceased to function for the last 20 years.
Held, (I) on the question of jurisdiction:
(1) This is amply covered by Wallis v. Wallis 1962 C.L.R. 32; Phidias Christodoulou v. Katerina Christodoulou 1962 C.L.R. 68, and several other cases which followed since. These cases also decide the law applicable, in the matter: The Matrimonial Causes Act, 1950 as amended and in force on 16.8.1960. (Cosgrove v. Cosgrove 1964 C.L.R. 77, Darmanin v. Darmanin 1962 C.L.R. 264).
(II) as to desertion and particularly constructive desertion:
(1) I have no hesitation in reaching the conclusion that the wife's conduct during the husband's absence on war-service, leading to his departure from home in 1945, was of such grave and weighty nature as to put the wife in constructive desertion. And that her conduct thereafter, during the long period of years ending with the filing of this suit and the hearing of the petition, confirms in a most consistent manner, the animus behind the factum of this long separation in desertion.
(2) It is common ground that the marriage between the parties was wrecked about twenty years ago and has existed only in completely useless ruins for a period longer than the three years provided in section 1 (1) (b) of the statute (14 Geo., 6, c. 25).
(3) I am not prepared to exercise the Court's discretion in granting to the petitioner the remedy sought by this suit, until the whole amount still payable to the respondent-wife under the Order for alimony, be made a Court deposit.
(4) The case to stand adjourned sine die to enable the party concerned, to comply with these directions. In default, the Registrar to put the case on the list in the next term for judgment.
Order in terms.
Cases referred to:
Wallis v. Wallis 1962 C.L.R. 32;
Phidias Christodoulou v. Katerina Christodoulou 1962 C.L.R. 68;
Cosgrove v. Cosgrove 1964 C.L.R. 77;
Darmanin v. Darmanin 1962 C.L.R. 264;
Saunders v. Saunders ((1965)2 W.L.R. p. 32, at p. 35).
Matrimonial Petition.
Petition for dissolution of marriage by the husband on the ground of desertion.
A. Emilianides, for the petitioner.
K. Michaelides, for the respondent.
Cur. adv. vult.
The following judgment was delivered by:
VASSILIADES, J.: This is a husband's petition for dissolution of the marriage between the parties, on the ground of desertion.
The original prayer in the petition filed on the 30th November, 1961, was for a declaration that the marriage was null and void. After considerable delay and suspense, (into which I find it unnecessary to enter at this stage of the proceedings) the petitioner applied, in January, 1965, for amendments, the effect of which were practically to abandon the prayer for nullity and to substitute it by one for dissolution of the marriage, on the ground of desertion on the part of the respondent, over a long period of years; "ever since the end of February, 1945". This I take to mean the ground in section 1 (1) (b) of the Matrimonial Causes Act, 1950. (14 Geo., 6, c. 25).
The respondent wife who lives in England, did not enter a formal appearance (vide Chief Registrar's certificate dated 12th December, 1963); but sent an answer to the Chief Registrar together with a letter dated 22nd August, 1962, filed on the 29th August. After obtaining leave for extension of time, Counsel for the petitioner filed a reply to the answer, on the 8th November, 1962. When the petition came on for hearing on the 9th November, 1964, in the absence of the respondent, the Court ruled in the special circumstances of this case, that "notwithstanding any irregularity in the filing of the answer", it would be admitted on the record. Counsel for the petitioner agreed, adding that he had in fact filed a reply to the answer since November, 1962.
It was in these circumstances that counsel for the petitioner took steps to amend the prayer by a subsequent application, with notice to the respondent in England. The respondent on the 22nd November, 1964, again sent by post, to the chief Registrar, her answer to the amended petition, in her own hand-writing, which, notwithstanding irregularities, was treated as constituting respondent's pleading in this case. This document rather reflects respondent's mind regarding the petitioner, than constitutes a defence. She accuses him of abandoning his family for another woman with whom he lived in adultery; and, in her turn, charging him with desertion, she prays: "that the Court may order him to pay maintenance and damages for losing her homes so many times, and as punishment for his cruelty". She concludes at p. 4 with the words: "It is about time he should compensate Me, his victim, and pay at least in money if he can never pay with his conscience and remorse. I pray for a favourite answer". She does not ask for dissolution of the marriage on the ground of her husband's alleged desertion. I must, therefore, take it that there is no such cross-prayer before me.
At the hearing, both parties were represented by counsel. After the evidence of the petitioner was heard, counsel on his behalf suggested calling the parties' married daughter, to support his client. The daughter, however, returning to her father's advocate the summons served upon her, she begged to be spared the unpleasant obligation of giving evidence in this suit. And counsel agreed to dispense with her evidence. He called another common relative instead. No witness was called for the respondent.
On the evidence before me, I find the material facts as follows:
Both parties are Greek-Cypriots of Famagusta, where they were born and lived until after attaining full age. They are said to he related to each ether within a degree prohibiting marriage between them in the Greek Orthodox Church to which both of them belong. The husband's domicil of origin is Cyprus; where, at the time of the filing of this petition (30.11.61) the husband had his permanent place of residence, and his business as a master tailor. I find that his domicil is in Cyprus.
In 1939, at the age of 23 the petitioner went to England to improve his skill in tailoring. The respondent also went there soon after; and while in England, the parties, having developed relations which rendered the respondent an expectant mother, were married at St. Pancras Register Office, London, on the 26th March, 1940. Their marriage was not solemnised in any Church. Their first child, a girl, Androniki (now a married woman) was born about two months later, on the 12th May, 1940.
In September, 1940, the petitioner joined the British Forces as a volunteer. In his evidence he first said that he was in the Army between September, 1939 and May, 1946; but he is making a mistake there. He subsequently stated that his wife and child came to occupy quarters near the area of his Unit. And counsel on his behalf in his final address, agreed that his client's military service was between September, 1940, and May, 1946. The respondent opposed her husband's joining the Forces as a volunteer, notwithstanding his explanation that he would have to do so as a conscript, a little later If one were to recall the conditions in England at that time, one can better understand petitioner's decision in the matter, as well as respondent's point of view.
For the first 18 months of his service, September 1940 to April, 1942, the petitioner was stationed in England, and had his family in the vicinity, joining them whenever his service allowed him to do so. During this period the parties' second child was horn, in June, 1941: Rosemary (also a married woman now). Between April, 1942, and July, 1944, the petitioner's Unit was on service away from England; and during this period, he joined his family whenever he could be in England on leave. The relations between husband and wife until February, 1944, were normal; and during this period, their 3rd child, a boy, Petros, was born on the 2nd February, 1943. On one of such visits, in February, 1944, there occurred a scene between the parties, which may be described as the origin of the difficulties which ruined their marriage, and eventually led to the present suit.
While serving in Belgium, the petitioner was informed by his wife in a letter, that she had been attacked by another man. The letter is not before the Court and I can only refer to the fact that it was sent, as this was put to the petitioner by counsel for the respondent, in cross-examination. On his next visit after that letter, in February, 1944, when the petitioner went to join his wife in Linconshire where she was living with their three children, he was with them only for a few hours, before his wife informed him that she was suffering from venereal disease in consequence of the sexual attack she alleged to have had from an unknown serviceman. On this point, I accept the evidence of the petitioner, and I find accordingly. The discussion and the scene which followed between these Cypriot husband and wife, as to the cause of the latter's condition, ended in petitioner's leaving his family within a few hours after his arrival, in order to proceed to his relations in London, in a frame of mind which it is not difficult for me to understand. The husband obviously did not accept the wife's explanation, and was gravely shaken with the matter. That was the first major crack in yet one more war-broken home.
In London the petitioner discussed this matter with his relations and returned to his Unit abroad, without going to see his wife or children. I accept his evidence to the effect that he seriously considered taking divorce proceedings against his wife; and steps for the guardianship of the children. It is from these facts, that I reach the conclusion that his wife's explanation of her condition, did not satisfy him; and, that he seriously considered on that occasion, putting an end to the marriage between them. His conduct at that time amounts, in my opinion, to an intention of breaking off his marital relations with his wife in consequence of his belief that she was guilty of serious matrimonial misconduct. A belief which, in the circumstances, was not, I think, unreasonable. On returning to his Unit, the petitioner reported the matter to his Commanding Officer; but, took no further steps about it, at that stage.
There is no evidence or suggestion on the part of the respondent, that she did anything about this matter, either. She continued, of course, drawing her Army allowance for herself and the children, during the months which followed the incident. But she does not appear to have reacted positively to her husband's grave accusation.
About a year later, in 1945, when the petitioner was again in England on leave, he went to the Linconshire village where his wife and children were still living, in order to see his children. What happened on that occasion, I find from petitioner's evidence: "My meeting with the respondent on that occasion, he said, was very rough. We had a strongly worded argument between us. She complained that I had abandoned them in a small village in England. And, after the exchange of strong language we had a fight. After that, I went away back to London, and from there to my Unit".
This incident, confirms in my mind the finding, that marriage relations between this couple had broken down. And that, there was no intention or any effort at that critical stage, on the part of either side, to save their marriage. I find that the conduct of this Cypriot wife during the period which commenced with her contacting venereal disease early in 1944, and this parting in 1945, towards her Cypriot husband, was of such nature as to constitute a sufficiently grave cause of driving him away from her and from the matrimonial home, in the frame of mind to finish with her for good, by putting an end to the marriage. And, to this extent, I find her guilty of constructive desertion, which continued from this stage onwards.
There is no evidence or suggestion that the respondent took any steps with the Army authorities during the months which followed, to save the marriage, while her husband was still in the Army. He was demobilised in England in May, 1946. But did not join his wife who, in the meantime, had come to live in London. He saw her, he said, on a few occasions while in London, to persuade her to come back to Cyprus with the children. She agreed to do so, he added; and about three months after his demobilisation, viz: about September, 1946, the petitioner took the respondent and the children to Southampton where he put them on board a ship for Cyprus. He remained in London. Marital relations were never reestablished. "To persuade my wife to return to Cyprus, I gave her the whole amount which I had received on my demobilisation, he said, i.e. £250." I accept this evidence; and I find accordingly.
On arrival in Cyprus, the respondent went to live with her own parents; while the petitioner remained in England, where he started again a tailoring and dress-making business. During this period, while respondent was in Cyprus, the younger child, Petros, was given in adoption to an uncle of the petitioner, under a Court order, in adoption proceedings. From that period (1946) onwards, there may be desertion on both sides. But there is no claim before me, as far as I can understand respondent's pleading, for dissolution of the marriage on the ground of the husband's desertion. The issue therefore does not arise; and I make no finding thereon. Had there been such a claim, the case would be simpler.
In 1950, the petitioner filed divorce proceedings in England on the ground of adultery, according to the oral evidence I had on the point, in the present case. The respondent went to England to defend the suit. And in fact the proceeding failed, as the petitioner did not satisfy the Court, he said, on the allegation of adultery. Following up her success in that litigation, the respondent took proceedings for maintenance before the Magisterial Court; and obtained an order, according to the oral evidence before me, for herself and one of the children. In this connection, the respondent alleges that the petitioner is in arrear of payments under the Magistrate's order, amounting to over £300. But, unfortunately, respondent's counsel was not able to give me the exact figure, as he had not been supplied with a copy the order; and did not have sufficient instructions from his client on the point.
Both parties lived in London (luring the period between 1950 and 1960. They lived in separation. The petitioner was running a tailoring and dress-making business, and was living in a boarding house. The respondent bought a house in which she let rooms to lodgers. During this period, the petitioner developed intimate relations with one of the female workers in his shop; while on her part, the respondent had a lodger in her house whom the petitioner believed to be also her man. The petitioner admitted in the witness-box, that as from 1957 he has been living with the female worker in question. He also stated that during this period of ten years in London, the parties' daughters as well as other persons, attempted bringing about a reconciliation between them, but failed. I accept this evidence.
In 1954, witness Papasolomou (P.W. 2), who is a first cousin of the petitioner, and a more distant cousin of the respondent, was in London for medical treatment. While there, he made one of such attempts. "For the sake of the children" he said, "especially the two girls, the eldest of whom was then fourteen years old; the younger was thirteen". The petitioner agreed to the proposal, he stated, but the respondent flatly declined it; and the matter was dropped. This witness's evidence was contested on behalf of the respondent as completely untrue. But the witness has favourably impressed me, and, in the circumstances, I have no doubt in my mind, that his evidence is substantially true. The whole background of the case, and the strained relations between the parties at that time, confirm in my mind the evidence on this point. I find that the respondent, persisting in her attitude towards the petitioner, rejected all suggestions for reconciliation; and I am inclined to think, that the petitioner on his part, was not really displeased with her attitude. This again, would be in full accordance with his feelings towards his wife.
In 1961, the petitioner came to Cyprus where his old mother was dangerously ill; and his eldest daughter, who had been married in the meantime, was expecting her first child. He had come to Cyprus earlier, and now he decided to wind up his business in London and return to Cyprus for good. In fact he went back to England to make the necessary arrangements, and returned to Cyprus in 1961, to establish his present tailor's shop. He has been permanently residing in Famagusta ever since. The respondent, on the other hand, still lives in London where she continues her boarding house business, apparently, with no intention of abandoning it; no intention or desire of reconciling with her husband.
The two daughters of the parties are now both married One, to a bank clerk in Cyprus; and the other to a bus driver in London. The boy, who is now a young man of 22, is the adopted son of another family, and he is taking higher education in England.
On these facts, I take the view that the marriage between the parties has completely broken down, and in effect has ceased to function for the last 20 years.
The first matter to be considered is the question of jurisdiction. This is amply covered by Wallis v. Wallis 1962 C.L.R. 32; Phidias Christodoulou v. Katerina Christodoulou 1962 C.L.R. 68; and several other cases which followed since. These cases also decide the law applicable, in the matter: The Matrimonial Causes Act, 1950, as amended and in force on 16.8.1960. (Cosgrove v. Cosgrove 1964 C.L.R. 77; Darmanin v. Darmanin 1962 C.L.R. 264.
As to desertion, and particularly constructive desertion, I take the law from Rayden on Divorce, 8th Edition, Chapter III, Section VI, paragraphs 120-125 (pp. 161-168); and paragraphs 129-134 (pp. 170-176).
Constructive desertion, and the tests applicable in such cases, were recently considered in Saunders v. Saunders in the Prob. Division of the high Court of Justice in England, reported in (1965) 2 W.L.R. p. 32. Sir Jocelyn Simon, P., is reported at p. 35G, to have stated the position as follows:
"I turn first to the question of whether the conduct was capable in law of amounting to constructive desertion. The generally accepted test of what conduct amounts to constructive desertion is this Has the defendant been guilty of such grave and weighty misconduct that the only sensible inference is that he knew that the complainant would in all probability withdraw permanently from co-habitation with him, if she acted like any reasonable person in her position? So stated, factum and animus and, indeed, absence of consensuality are intimately bound up."
That was a case where the wife left the husband and issued a complaint against him alleging desertion and wilful neglect to maintain her. The wife's case was, inter alia, that the husband opened her letters, did nothing to protect her when his father abused her, made her work long hours in the shop they owned, and several other such complaints, including that he insisted on buying her clothes, and had laughed at her. The justices found that the husband had shown callousness and lack of consideration for the wife's feelings which amounted to constructive desertion on his part; and that the wife was justified in leaving the matrimonial home on account of such conduct. On appeal by the husband, the Divisional Court took the view that it was open to the justices to find as they did; and dismissed the appeal.
In the present case, I am of the opinion that the wife's conduct leading to her inability to satisfy her Cypriot husband that the venereal disease which she had contacted during his absence in war-service, was the result of an attack where she was really an innocent and unwilling victim, was a serious matter affecting their marriage. There is no evidence whatsoever that the wife's explanations extended beyond her personal assurances; and that, obviously, did not satisfy the husband. During the months which followed she did nothing to cure matters. And when her husband returned home about a year later, to see their infant children, her conduct resulted in a fight, as stated in the husband's evidence; and to his departure from home.
I have no hesitation in reaching the conclusion that the wife's conduct during the husband s absence on war-service, leading to his departure from home in 1945, was of such grave and weighty nature as to put the wife in constructive desertion. And that her conduct thereafter, during the long period of years ending with the filing of this suit and the hearing of the petition, confirms in a most consistent manner, the animus behind the factum of this long separation in desertion.
The husband's conduct as described in his own evidence, and particularly his living in adultery with another woman since 1957, comes into play in the present suit, in connection with the exercise of the Court's discretion. It is common ground that the marriage between the parties was wrecked about twenty years ago, and has existed only in completely useless ruins for a period longer than the three years provided in section 1 (1) (b) of the statute (14 Geo. 6 c. 25). But a Court Order for alimony stood in force for a considerable part of this period; and counsel for the respondent-wife, although unable to produce the Order or give particulars thereof, claimed that the Order is still in force, and that payments there under amounting to over £300 are in arrear. This situation should not have been allowed to develop under a Court's Order for alimony. And I am not prepared to overlook it. Without entering further into the matter, and without dealing in any way with the validity of any claim thereunder, I shall repeat here what I have already indicated at the conclusion of the trial I am not prepared to exercise the Court's discretion in granting to the petitioner the remedy sought by this suit, until the whole amount still payable to the respondent-wife under the Order for alimony, be made a Court deposit.
The case to stand adjourned sine die to enable the party concerned, to comply with these directions. In default, the Registrar to put the case on the list in the next term for judgment.
Order accordingly.