Cypriot Supreme Court allows wife's maintenance claim, reducing husband's payment due to his conduct and children's income.

[*1376] 1972 November. 11

(HADJITSANGARIS, DJ.)

IN THE DISTRICT COURT OF LIMASSOL

Elenitsa Aradipioti, personally and on

behalf of her infant children Yioula

and Stelios Aradipiotis,

Applicant,

v.

Lollos Aradipiotis,

Respondent.

(Application No. 11/72).

Husband and wife - Maintenance - Children - Wife - Principles upon which it is determined.

Maintenance - See, under "Husband and Wife".

C. Tsirides, for the Applicant.

V. Tapakoudes, for the Respondent.

JUDGMENT

The following judgment was delivered by: -

HADJITSANGARIS, D.J.: By virtue of the present [*1377] application the applicant is

praying for an order of the Court ordering the respondent to pay the sura of £80, - per month towards her maintenance and the maintena ce of her

infant children Yioula and Stelios Aradipiotis.

This maintenance application, supported by the affidavit of the applicant dated 27.6.1972, is based on s. 40 of the Courts of Justice Law, 1960 (Law 14 of 1960) and Article 111 of the Constitution.

An opposition was filed to this application on the 31.7.1972 supported by the Affidavit of the respondent who offers to pay only the sum of £10.- per month towards the maintenance of the applicants.

At the hearing of the case Elenitsa Aradipioti and the daughter of the litigants Yioula, gave evidence for the applicants and the respondent testified himself.

The undisputed facts of the application are as follows: -

The parties were married in accordance with the Greek Orthodox dogma during the year 1953. They had two children from their marriage. Yioula born on the 12.4.1955 and Stelios born on the 11.12.1962. The parties separated on or about the month cf January, 1972 and the husband now resides alone in a separate house from the original dwelling house situated at Polyxenis Loiaiadou Street, 15, in Limassol. After the separation the husband continued paying the rent of the aforesaid dwelling house amounting to £25.-per month and £6.- per week for the maintenance of the family, i.e. £49.- in all plus electricity and water charges. [*1378]

On the 26.8.1972 the applicant wife received an invitation sent by the Respondent through the Bishop of Kitiura to follow him to his new residence at 7 Verdi Street in Limassol, she duly complied and the respondent in his own testimony admitted that he refused to accept her. In his examination in chief he said verbatim the following:-

"It is true that I sent an invitation to my wife to follow me to the matrimonial home at Yerdi Street she informed me that she was coming with our son. It was 2.30 p.m. I was in bed and I told his mother (the applicant) to come later, as I was resting".

From the above and from the readiness of the applicant to follow her husband it seems that the marriage broke mainly due to the husbands conduct.

It is an undisputed fact that the respondent has the sum of £7,000.000 mils which he gives on loan and receives interest of 9% he thus has an

income from the said capital amounting to about £52.- per month. It is also common ground that Yioula is now working and

she earns £20, - per month.

What is the main issue in dispute is the determination of the present income of the Respondent from his work as a printer. Respondent has his own printing firm which must be a small concern as he is running it alone for the last 4 years without any employees. The applicant wife in her sworn testimony alleged that her husband must earn £200.- from his work. The daughter Yioula on the other hand, who as [*1379] Late as 6 months ago wont to assist her father frequently in his work, estimated his income to be between £100-£150.- per month. The respondent alleged that his income from his printing firm yields only £50.000 mils and to that effect he produced to the Court his income tax returns which show that for the year 1972 his total annual income was assessed at £1080.- at the same time he admitted that a bundle of receipts for money that he earned during the month of July 1970, exhibit 2, came to £66. -

From the totality of the evidence adduced before me I find that the monthly income of respondent is £122.- per month, i.e. £70.- from his printing work and £52.- from the interest his £7,000.000 mils capital yields.

The principles upon which the amount of maintenance is determined are briefly as follows:-

(a) In the case of children the principle is that they should continue enjoying the same standard of living that they would, had the marriage continued subject to the realities of separation, i.e. that two households are in being now as opposed to one.

In the case of Zacharia v. Zacharia

(1969) 7 J.S.G , 'p. 992 at page 1005 Yassiliades P. had this to say:-

"The Court has now to find and determine until further order the amount which the father must pay for the maintenance and schooling of his child, on the standard which this girl would enjoy as a member of her father's family". [*1380]

Roberts v. Roberts (1968) 3 W.L.R. 1181.

Attwood v. Attwood (1968) 3 All E.R. p.385.

(b) In the case of the wife the conduct of the parties is a relevant consideration and I have already made a finding that the husband is mainly to blame for the braking up of the marriage. Sherife Sami of Polis v. Arif Hikmet Dirdiz of Limassol, Vol. XXI, C.L.R. page 185. Ackerman v. Ackerman noted Subnom A. v. A. at N.L.J, July, 1972, p.640. Courtney v. Courtney(1966)

1 All E.R. p.53.

The maintenance of the wife and children is primarily the responsibility of the husband the means of the young

17 year old girl Yioula will be also taken into consideration in deciding if any maintenace will be granted to her. The husband will have a duty to maintain his family to the standard of living they had enjoyed prior to the separation. Le Roy Lewes v. Le Roy Lewes,(1954) 3 All E.R. page 57, and Ridley v. Ridley, (1953)1 All E.R, page 798.

This is, however, as I stated earlier subject to the realities that two households are now in being as opposed to one.

Taking into consideration the above and in particular

(a) that the income of the husband is £122.- per month.

(b) That the wife has to pay £25.- per month rent for herself and the two children.

(c) That Yioula earns about £20.- per month and she thus helps her maintenance and generally [*1381] the maintenance of the mother's household (she pays £8.- per month for the family car).

(d) The fact that the husband lives alone and he pays only £16.- per month rent.

I have come to the conclusion that the following orders should be made:-

The respondent is hereby ordered to pay from the 1.12.1972:-

(A) £40.- per month for the maintenance of his wife Elenitsa Aradipioti until further order,

(B) £13.- per month for the maintenance of his son Stelios until further order,

(C) £5.- per month for the maintenance of his daughter Yioula until further order and until she becomes of age.

There is evidence before me that the respondent was paying regularly &50.- per month and therefore I cannot make this order retrospective.

Respondent is further ordered to pay £10.- towards the costs of this application. Amount of costs to be paid by the end of this month.

Application granted.

Order for costs as above.