Court grants maintenance despite cohabitation, ruling wilful neglect overrides shared residence requirement under Law 14/60 Section 40.

[*48] 1977 March 24

(KOURRIS, S.D.J.)

IN THE DISTRICT COURT OF NICOSIA

In the matter of Law 14/60, Section 40,

and

In the matter of a Maintenance Application

by Kleopatra Christodoulidou and Others,

Applicants,

and

Kyriacos, alias, Takis Christodoulides,

Respondent.

(Maintenance Application No. 42/76).

Husband and wife - Maintenance - Wilful neglect to maintain wife - Amount of maintenance - General principles -

Whether wife has to reside in separate premises in

order to be entitled to maintenance

- Section 40 of the Courts of Justice Law, 1960 (Law 14 of 1960).

M. Iacovou, for the Applicants.

N. Loizides for Ph. derides, for the Respondent.

JUDGMENT

The following judgment was delivered by:-

KOURRIS, S.D.J.: This is an application [*49] for maintenance under section 40 of the Courts of Justice Law (Law 14/60) by which the applicant claims maintenance for herself and for her three minor children from the respondent.

The parties got married on 4.6.1961 in accordance with the rites of the Greek Orthodox Church and they have three children namely, Andreas, Eleni and Maria, born on 24.8.1962, 6.2.1967 and 27.2.1968 respectively.

The peculiar factor in this case is that the parties live under the same roof and there has been a friction between the husband and the wife for a considerable time as far back as in 1966 when the wife brought an action against the husband for money lent to him and in accordance with Exhibit 1, on the 11.11.1967 she obtained judgment against her husband for £3,000.- with interest at 6% from 11 .11 .1 967 until final payment.

The wife, both in her affidavit and in her testimony in Court stated that the husband failed to maintain herself and their three children, because the food he was providing was not sufficient and further he failed to provide them with the necessary clothes.

The husband, both in his affidavit in support of his opposition and in his evidence before the Court, denied these allegations.

Counsel for the respondent-husband in his final address contended that this application is groundless in law, because the parties live under the same roof and for the. wife to succeed in her application it must be established[*50] that she was driven away by the conduct of her husband and that she lives in separate premises. Counsel in support of his submission relied on the words in the judgment in the case of Robert v. Robert (1968) 3 All E.R. 479, that "cohabitation must be disrupted". He contended that the meaning of these words impliedly means that there should be no cohabitation to entitle the wife to maintenance.

Section 40 of the law provides that if the husband has been guilty of wilful neglect to provide reasonable maintenance for his wife or infant children of the marriage, the Court on application of the wife may make a maintenance order directing the husband to make to her such periodical payments as may be just. Thus, it is apparent from the wording of this section that if a husband wilfully neglects to provide reasonable maintenance, then he is liable to make periodical payments as may be just. It nowhere states or can be implied that the wife must be residing in separate premises to entitle her to maintenance. Further, the definition of the word "maintenance" given in Words & Phrases Legally Defined, 2nd Edition, Volume 3, is as follows: "'Maintenance’ does not only mean the food a wife puts in her mouth. It also means her clothes, the house in which she lives and the money which she is to have in her pocket, all of which vary according to the means of her husband”.

In an Australian case referred to in the same volume, the word "maintenance" means the act of maintaining and denotes the regular supply of food, clothing and lodging; the provision of necessaries and of the conveniences of life. [*51]

I do not think that a wife to be entitled to maintenance must be living in separate premises from her husband. It is sufficient if she makes out a case that her husband wilfully neglects to maintain her even if they are living under the same roof.

During the hearing of this application the applicant-wife stated that he does not provide herself and their children with sufficient food for their bringing up and that since the filing of this application her husband forbids her to eat from the food he is bringing home and she has to buy food for her own maintenance and that as a result of this she took up employment as a seamstress on a part-time basis earning about £4.- per week. She stated that she devotes the afternoon of each day for the children and she cannot obtain employment on a full-time basis. She said that she needs £50.- per month for her maintenance since she is living in the same house with her husband and she will not have to pay rent and also she claimed £50.- for the maintenance of the three children.

The respondent-husband in his evidence denied that he does not provide his children with sufficient food and clothing and said that he incurs about £80.- per month for food for the children, himself and his wife, that he incurs another £12.- per month for private lessons for their son Andreas and he also pays another £4.- per month for the ’carate’ lessons his son is taking every month. He added that he gives to his son £15.- per month pocket money and he also gives £6.- pocket money for each of their daughters. [*52] He admitted, however, that he does not give any money to his wife or provide her with clothing since the filing of this application.

The Court when this application came before it for mention directed that a Welfare Report be prepared in this case so that the Welfare Office may help these unfortunate litigants to reconcile. But it appears that the Welfare Office have not been successful and this application proceeded to hearing. Pausing,here for a moment, I would like to state that I exclude from my mind the report prepared by the Welfare Office, because it has not been produced by consent and so it is not in evidence. Unlike Custody cases where by the relevant law a report is required to enable the Court to reach a determination, in maintenance cases such reports are not required by law and therefore are not admissible in evidence.

This application caused to me great concern and anxiety in view of the state of things prevailing in this family, and I have given to it my best consideration.

Having heard the parties and in the light of the evidence before me, I have not been satisfied that the respondent wilfully neglects to maintain the children; but I have been satisfied, both from the evidence of the applicant and the admission of the respondent, that he does not provide his wife with the necessary food, clothing and other necessary expenses and therefore I am prepared to make a maintenance order for her.

As I am satisfied that the husband wilfully [*53] neglected

to provide his wife with reasonable maintenance, I shall deal with the means of the husband and the wife for the purpose of making a maintenance order.

Before proceeding to do so, I propose to set out the principles on which the Courts rely in making maintenance orders.

In the case of Kershaw v. Kershaw

(1964) 3 All E.R. 635 Sir Jocelyn Simon, P., said the following at pp. 636-7:-

"If any general principles are to govern the approach to a wife's maintenance, I think that they are as follows. In cohabitation a wife shares with her husband a standard of living appropriate to his income, or, if she also I earning, their joint incomes. If cohabitation is destroyed by the wrongful conduct of the husband and wife’s maintenance should be so assessed that her standard of living does not suffer more than is inherent in the circumstances themselves of separation. Her standard of living may well have to be lower after the breach of cohabitation than it was before, since there may now be two households to be maintained in place of the former one, in which household expenses were shared. Although the standard of living of both parties may therefore have to be lower than it was before there was the breach of cohabitation, in general the wife should not be relegated to a lower standard of living than that which her husband enjoys". [*54]

Also in the case of Atwood v. Atwood (1968) 3 All E.R., Sir Jocelyn Simon, P., said the following at p. 388:-

“In my view the general considerations which should be borne in mind in this type of case are as follows - (i) In cohabitation a wife and the children share with the husband a standard of living appropriate to his income, or, if the wife is also working, their joint incomes. (ii) Where cohabitation has been disrupted by a matrimonial offence on the part of the husband, the wife’s and children’s maintenance should be so assessed that their standard of living does not suffer more than is inherent in the circumstances of separation, though the standard may be lower than theretofore (since the income or incomes may now have to support two households in place of the former one where household expenses were shared). (iii) Therefore, although the standard of living of all parties may have to be lower than before there was a breach of cohabitation, in general the wife and children should not be relegated to a significantly lower standard of living than that which the husband enjoys. As to the foregoing, see Kershaw v. Kershaw and Ashley v. Ashley. (iv) Subject to what follows, neither should the standard of living of the wife be put significantly higher than that of the husband, since so to do would in effect amount to imposing a fine on him for his matrimonial offence, [*55] and that is not justified by the modern law. (v) In determining the relevant standard of living of each party, the court should take into account the inescapable expenses of each party, especially, though not exclusively, expenses of earning an income and of maintaining any relevant child. (vi) If the wife is earning an income, or if she has what should in all the circumstances be considered as a potential earning capacity, that must be taken into account in determining the relevant standards of living: see Rose v. Rose, per Denning, L.J., and Levett

- Yeats v. Levett - Yeats. (vii) Where a wife is earning an income, that ought generally to be brought into account, unless it would be reasonable to expect her to give up the source of the income: Levett - Yeats v. Levett

- Yeats. (viii) Where the wife is earning an income, the whole of this need not, and should not ordinarily, be brought into account so as to enure to the husband's benefit; Ward v. Ward, and J. v. J., per Sachs, J., and per Hodson, L.J. (ix) This consideration is particularly potent where the wife only takes up employment in consequence of the disruption of the marriage by the husband, or where she would not reasonably be expected to be working if the marriage had not been so disrupted. (x) At the end of the case, the court must ensure that the result of its order is not to depress the [*56] husband below subsistence level: Ashley v.Ashley".

In a recent case, Gengler v. Gengler, (1976) 2 All E.R., P. 84, Latey J. had this to say:-

"I entirely and. respectfully agree with what Sir George Baker P. has said about the one-third calculation being a fair and useful starting point in proceedings in the magistrates' court, as it is in proceedings in this division. It is to be remembered that it is only a starting point. It may, and often does, end up also as the finishing point. But in many cases if does not. Taking into account the various factors which are enumerated in Atwood v. Atwood and applying them to the particular facts of a particular case, both the facts and the results are likely to vary one from the other".

The question now arises on the basis of these principles what is the amount payable to the applicant on the evidence before the Court. The wife has in her favour a judgment for £3,OOO.- with interest against her husband which has not been executed yet. Further she is earning £4. - per week from, her work as seamstress.

The husband is a Government Pharmacist with a monthly salary of £158.- net and he is also the owner of three flats and receives an income of £85.- rent per month from the two flats. The third flat is used for the inhabitation of the [*57] family. He is indebted with the Bank in the sum of £1 ,000.- which is the balance left from the original loan of £4,500.- for the purpose of erecting the three flats and he pays £40.- per month towards this debt. He also owes £3,000.- to his wife which he borrowed for the construction of the three flats.

I do not propose to take into consideration the monthly allowance which the wife receives from her mother who is established in England because the mother is not legally bound to maintain her married daughter and she can stop this allowance at any time she wishes to do so.

On the basis of the principles, I have just stated hereinabove and bearing in mind the evidence before me and all the circumstances of this case and bearing in particular the claim of the wife that £30.- is a sufficient amount for her maintenance, I make a maintenance order for the wife for £30.- per month as from 1.11.1976, the date on which this application was filed.

I do not make any order for the maintenance of the children because on the evidence I have not been satisfied that the respondent wilfully neglects to maintain them.

In the circumstances, the respondent is ordered to pay £30.- per month maintenance to the applicant from 1.11.1976 until further order.

Respondent to pay the costs. Costs to be assessed by the Registrar.

Application granted with costs.