Court orders husband to pay wife maintenance based on potential earning capacity, disregarding child support received by wife.

[*411] 1982 April 30

(HADJIHAMBIS , Ag .D. J.)

IN THE DISTRICT COURT OF LIMASSOL

Kika Paphiti,

Applicant,

v.

Savvas Paphitis,

Respondent.

(Maint. Appl. 33/81).

Maintenance - "Wilful neglect to provide reasonable maintenance for his wife" in section 40(l) of the Courts of Justice Law, 1960 (Law 14/60) - Meaning - Amount of maintenance - Matters to be taken into account - The "one -third rule" or "one-third approach" not inflexible - Conduct of the parties - Not only husband's. actual earnings but also his potential earning capacity - Sums received by wife from her children by way of assistance to be disregarded.

K. Tsirides, for the Applicant.

S. Papakyriacou, for the Respondent.

JUDGMENT

The following judgments was delivered by:-

HADJIHAMBIS.Ag.D.J.Mrs Kika Paphiti,[*412] by this Application under s. 40(1) of the Courts of Justice Law 1960, prays for an order ordering her husband, Mr. Savvas Paphitis, to pay C£90.- per month for her main­tenance and support, the respondent having failed to provide her with any means to that purpose since the 16th October, 1981. It was on that day that the respondent, following the last in a long line of rows at home, left and proceeded to live by himself in a rented room, all communication between, him and the applicant, and all provision by him for the applicant’s maintenance and support save for the payment of C£23.- per month for the rent of the family house, being there­after interrupted. The parties married in 1957 and have two sons, Anaxagoras and Gregoris, aged 25 and 23 years respectively, the latter still living in the family house.

Section 40(1) of the Courts of Justice Law I960 provides:

Ένα οιονδήποτε εκκλησιαστικόν

δικαστήριον της Ελληνικής Ορθοδόξου Εκκλησίας εις ην εφαρμόζονται αι διατάξεις

της πρώτης παραγράφου του άρθρου 111 του Συντάγματος (εν τοις επομένοις εν τω

άρθρω τούτω αναφερομένης ως η εκκλησία), θα είχε εξουσίαν ίνα επιληφθή

διαφοράς, εγειρομένης υπό συζύγου εν σχέσει προς τον γάμον αυτής, και ο σύζυγος

εγένετο ένοχος ηθελημένης αμελείας ίνα προμηθεύει εύλογον διατροφήν δια την [*413] σύζυγον αυτού ή τα ανήλικα τέκνα του γάμου, ο

Πρόεδρος Επαρχιακού Δικαστηρίου ή ο Επαρχιακός Δικαστής, επί αιτήσει της

συζύγου, δύναται να εκδώση διάταγμα διατροφής, διάτασσον τον σύζυγον όπως

καταβάλλη προς αυτήν τοιαύτας περιοδικάς πληρωμάς ως θα εθεωρείτο εύλογον.

In the first place, I should point out that, under the section, a husband is guilty of wilful neglect to provide reasonable maintenance for his wife if he has failed to do so, and no further mental element need be established in that respect. As Sir George Baker, P., put it in Brannan v. Brannan (1975)

1 ALL E.R. 38, at p.45, after a review of the authorities;

"These cases suggest that ’wilfulness' in this context does not coonote any malice or wickedness but that the misconduct, if it is appropriate to use that word, consists only in the failure to pay to the wife sums which, in the opinion of the court, ”are in all the circumstances sufficient, for her reasonable maintenance and support. The wilfulness amounts to nothing more than this, that the husband knows what he is doing and intends to do what he is doing". [*414]

In so far, therefore, as, in the instant case, the respondent has, since the l6th October, 1981, knowingly and intentionally failed to provide any means for the maintenance and support of the applicant beyond continuing the monthly payment of the family house rent, he is guilty of wilful neglect. Nevertheless, the substantial question that falls for determination under this application is whether such wilful neglect is neglect to provide reasonable maintenance or, in other words, what is the amount of maintenance, if any, to which the applicant is reasonably entitled in the light of all the circumstances. The applicant, both in her affidavit in support of the applica­tion and in her testimony in Court, has asserted that the respondent persistently neglected, ill-treated, and finally deserted her, by leaving the family house, and that he is liable to provide her with a maintenance of C£90.- per month. The respondent, on the other hand, both in his affidavit in support of his Opposition to the application and in his testimony in Court, has alleged that he was thrown out of the family house by the applicant who, over their years of marriage, made his life unbearable, and that, consequently, the applicant is not entitled to any maintenance beyond the C£23.- per month which he already pays for the family house rent. [*415]

In considering this question, I start from the principles expounded and applied in the authorities both in England and in Cyprus. In the case of an innocent wife, that is, when the husband is exclusively to blame for the interruption of matrimonial harmony, the "one-third rule.” or "one-third approach” has traditionally been employed by the Courts to award the wife maintenance equal to one-third of the joint incomes of the spouses less the wife’s income. However, it would be wrong to treat this rule or approach as an inflexible criterion for, at best, it. amounts to no more than a useful starting point in the normal case. In Wachtel v. Wachtel (1973)

1 ALL E.R. 829, C.A., in the context of maintenance upon divorce, Lord Denning, M.R., giving the judgmentof the Court

of Appeal, at once explained the background to it, in terms of the social and economic , realities involved, and stressed the limits of its reliabi­lity. As he put it, at p.839:

"That one-third rule has been much criticised. In Kershaw v. Kershaw, Sir Jocelyn Simon P. spoke of it as 'the discredited one-third rule'.But it has retained its attraction for a very simple reason; those who have to assess maintenance must have some starting point. They cannot operate in a void. No better starting point has yet been suggested than the one-third rule. In Ackerman v. Ackerman, Phillimore L. J. said: '.... the proper, course is to start again. I would begin with the ’one-third rule' - bearing in mind that it is not a rule'. [*416]

"There was, we think, much good sense in taking one-third, as a starting point. When a marriage breaks up, there will thenceforward be two house holds instead of one. The husband will

have to go out to work all day and must get some woman to look after the house - either a wife, if he remarries, or a housekeeper, if he does not. He will also have to provide maintenance for the children. The

wife will not usually have so

much expense. She may go out to work herself, but she will not usually employ a house keeper. She will do most of the housework

herself, perhaps with some

help. Or she may remarry, in which case her new husband will provide for her. In any case, when there are two households, the

greater expense will, in most cases, fall on the husband than

the wife. As a start has to be made somewhere, it seems to us that in the past it was quite fair to start with one-third. Counsel for the

wife criticised the application of the so-called ’one-third rule’ on the ground that it no longer is applicable to presentday

conditions, notwithstanding what was said in Ackerman v. Ackerman. But this so-called rule is not a rule and must never be so regarded. In any calculation the court has to have a

starting point. If it is not

to be one-third, should it be one-half? or one-quarter? A starting point at one-third of the combined resources of the parties is as

good and [*417] rational a starting point as any other, remembering that the essence of the legislation is to secure flexibility to meet the justice of particular cases, and not rigidity, forcing particular cases to be fitted into some so-called principle within which they do not easily lie. There may be cases where more than one-third is right. There are likely to be many other where less than one-third is the only practicable-solution. But one third as a flexible starting point is in general more likely to lead to the correct final result than a starting point of equality, or a quarter".

Even more recently, Latey, J., commenting on the roleof the "one-third" calculation in the exercise of the Court’s discretion in Gengler v. Gengler (1976) 2 ALL E.R. 81, said, at p.84s

"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 it does not. Taking into account the various factors which are enumerated in Attwood v. Attwood 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". [*418]

I find the "one-third rule" or "one-third approach" useful only as. a very general starting point but, for that very reason, of little assistance as regards the circumstances of each individual case for the purpose of determining the extent to which, it diverges from the general pattern assumed. Indeed, it must be pointed out that s.40(1) confers a very wide discretion on the Court (to make such an order as may be reasonable), to be exercised, I apprehend, in the light of all the circumstances, that it would be wrong to limit or condition by an overdue attachment to an a priori supposedly generally appropriate test in terms of proportions. To my mind, a more useful approach than that is the one expressed

by Sir Jocelyn Simon, P., in Kershaw v. Kershaw (1964) 3 ALL E.R. 635 , at pp. 636-637, in a dictum which has been cited with approval and

followed time and again both in England and in Cyprus. Rejecting any approach in terms of proportions as rigid, unrealistic, and misleading, his Lordship said;

"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 is earning, their joint incomes. If cohabitation is destroyed by the wrongful conduct of the husband the wife's maintenance should be so assessed that her standard of living does not suffer more than is inherent in the [*419] 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. In saying that I am not advocating ’a one-half rule' or 'a one-half approach.' .... there may be many other circumstances which have to be taken into account ...".

Sir Jocelyn Simon, P., elaborated further on these principles In Attwood v. Attwood (1968) 3 ALL E.R. 385, when, at p.388, he said:

"In my view the general considerations which should be borne in mind in this type of case are as follows – (i) In co-habitation 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 [*420] 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, 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, [*421] 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 husband below subsistence level: Ashley v. Ashley. (xi) An appellate court will not interfere with an award

of maintenance unless, to use the words used in Ward v, Ward, 'it is unreasonable or indiscreet': that is to say that the (Court is) shown

to have gone wrong in principle or (its) final award is otherwise clearly wrong".[*422]

Finally, I refer to the Cyprus, authorities, and, in particular, to the decisions of Hadjitsangaris, J., as he then was, in Aradipioti v. Aradipiotis (1973) 10 J.S.C, 1376, Hadjioonstantinou, S,D.J., in Ioannou v. Solomou (1975) 6 J.S.C. 851,

and Kourris, S.D.J., as he then was, in Christodoulidou v. Christodoulides (1979) 1 J.S.C. 48 and E.C. v. Α.C. (1979) 2

J.S.C. 314.

So far I have referred to the principles applicable in the case of an innocent wife. The authorities, however, go further and establish that the Court is entitled to take, into consideration, as part of the circumstances, the conduct of the wife as well as that of the husband. Thus, in Courtney v. Courtney (1966) 1 ALL E.R. 53, a finding that the wife was guilty of conjugal unkindness consisting of being unreasonably critical of her husband and nagging him, was held to be a relevant consideration in determining, the amount of maintenance. As Rees, J., put it, at pp. 58-59 ’

"Two matters are so clear that they may be stated without being supported by the citation of authority. The first is that it is the conduct of both parties and not of one only that must be considered ... The second matter is that the conduct of the parties is only one of the matters which the (Court) should take into account among ’all the circumstances of the case'". [*423]

Indeed, in the casè of an innocent husband and a guilty wife the Court may consider that, in all the circumstances, the wife is not entitled to any maintenance at all - Glenister v. Glenister (1945) 1 ALL E.R. 513.

Applying these principles in the instant case, I should, in the first place, indicate certain facts which, on the evidence, are not in dispute. According to the testimony of Mr. N. Ieropoulos, the accountant of Curium Hotel where the respondent is employed as an engineer, the respondent’s monthly earnings are on average about C£236.- which, after deductions, leave him with about C£197.- per month. To this must be added another approxi­mate amount of C£7.- per month which, according, to the respondent’s own testimony, he gets by way of extra work from customers at the Hotel, bringing the total average to about C£204.- per month. Since the 16th October, 1981, the respondent has contributed nothing towards the mainte­nance and support of the applicant except for the payment of C£23.- per month for the rent of the family house in which the applicant continues to live. Up to the 16th October, 1981, the respondent, in addition to paying the rent, was providing the applicant with the sum of C£64.-_ per month for the needs of the house and paying for the family’s clothing and shoeing needs. According to the applicant's evidence, which has not been challenged,

the applicant never worked during the marriage and cannot work [*424] because she suffers from osteoarthritis, and has no property,

money, or income of her own. Since the respondent's failure to maintain her, she has been, receiving C£30*.- per month assistance from her son Gregoris, who lives with her, about C£ 15.- per month assistance from her married daughter by another man to whom she was engaged before her marriage, and some further limited assistance from her son Anaxagoras, who does not live with her.

I next turn to consider each party’s testimony as to his or her needs and expenses. The applicant has testified that, apart from the C£23.- per month rent, which is paid by the respondent, she pays and needs C£45.- per month for her food, C£10.- per month for clothing, C£6.- per month for electricity, C£2.- per month for the telephone, C£l.- per month, for water, and C£20.- per month for her doctors and medicines, totalling to C£107,- per month. Apart from the amount concerning the applicant's food, these amounts have not really been challenged and I do. not find them excessive or untrue. Accordingly, I find that the applicant needs about C£107.- per month for her maintenance and support. As for the respondent's needs, he pays, according to his testimony, (apart from the C£23.- per month for the family

house rent), C£40.- per month rent, C£60-C£65.- per month for his food, C£17-C£22.- per month for his laundry and

dry-.leaning, about C£50.- per month for his car (which is registered in the name of the wife) and about [*425] C£37.- per month for his cigarettes and drinks, totalling to C£204 - C£214.- per month. I am not persuaded by the respondent’s demeanour in the witness box as to these amounts which, I may also point out, exceed what he has stated to be his income and means. I find that he has been exaggerating his needs and expenses quite considerably and that, in any case, the amount which he reasonably requires for his needs, taking into consideration his living and working conditions on the evidence, is rather in the region of C£120.- per month. In this respect, I refer to E.C. v. A.C., where a debt unjustifiably incurred by the husband was disregarded as part of his obligations and needs on the basis of the principle that a husband cannot, by creating unreasonable needs or obligations for himself, affect the maintenance to which his wife would otherwise be entitled. In relation to his food needs, I, particularly take into consideration the fact that the respondent has the benefit of breakfast and lunch at work, a circumstance which was considered to be a relevant consideration in Ashley v. Ashley (l965) 3 ALL E.R. 554, irrespective of whether he chooses to avail himself of this benefit or not.

Regarding the amount, if any, which, on these findings, is a reasonable maintenance to be provided by the respondent to the applicant, several other matters, apart from the parties’ means and needs, have to be taken into consideration. [*426] In the first place, the parties’ conduct, as already indicated, is relevant in this respect. This marriage has had a chequered career of ups and downs with several interruptions of cohabitation, producing a relationship which leaves much to be desired by way of matrimonial harmony. In her stand in the witness box, the applicant has painted a most gloomy portrait of her husband’s behaviour, throwing all blame for everything that went wrong on him, and presented herself as a perfect wife who, despite all his alleged disrespect, ill-treatment, and neglect, of her, always gave way and suffered in heroic unprotest. In this, her evidence is supported by that of her son Gregoris Paphitis. The respondent, in his turn, was no less far from complimentary of his wife’s character and record and spoke of how she always made exorbitant monetary demands beyond his. means and, through her words and deeds, made his life, unbearable and caused him psychological problems. The upshot of these testimonial polemics was,-on the one hand, the applicant’s allegation that the respondent, as on previous occasions, deserted her on the 16th of October 1981 and, on the other hand, the respondent's allegation that, on that day, the applicant, as on previous occasions, threw him out of the house. In this respect also the applicant’s version is supported by that of her son. [*427]

Against this none too happy backgrounds and having had the opportunity to observe the demeanour of the witnesses in the witness box, I have formed the view, and I so find, that both sides have been exaggerating their evidence and that the truth regarding each party’s share in the responsi­bility for the breakdown of matrimonial harmony lies some­where between the two extremes so presented. And that, particularly, while the major blame in this respect lies with the respondent, who was disrespectful of, ill-treated, and neglected, his wife, finally deserting her, as on previous occasions, the applicant herself is not free from blame in that she tended to be overconcerned and nagging about money, somewhat domineering, and herself at times dis­respectful of her husband in her own language. In this respect, I do not attach exclusive significance to the events of the l6th of October 1981, in relation to which I accept the version of the applicant and her son, not so much because those events cannot be seen in isolation but only against a wider background, but primarily because the parties’ conduct must be considered in toto and not simply in relation to the events immediately preceding and leading to the interruption of co-habitation.

Apart from the parties’ conduct, I have taken into consideration or disregarded certain other matters in determining the question of reasonable maintenance. Thus, related to the parties’ conduct, I have paid regard to the fact that a considerable part of the respondent’s present [*428] needs have arisen largely through his own share in the responsibility for the interruption of co-habitation.

I have also paid regard to the considerable length of this marriage, to which the applicant has devoted the best years of her life, bearing the respondent and raising up two sons. Another relevant consideration is the parties’ potential earning capacity. As for the applicant, I am satisfied, not as much by the fact that she has not worked and has not been required to work before, as by the fact that she is suffering considerably from osteoarthritis, that she cannot reasonably be expected to work for her maintenance. As for the respondent, I rely on the authority of McEwan v. McEwan (1972) 2 ALL E.R. 708, to the effect that the Court should take into consideration not only the husband’s actual earnings but also his potential earning capacity, on the basis of the principle expounded by "Lord Merrivale, P., in N. v. N. (1928) ALL E.R. Rep. 462, at p. 466, in a passage which has been cited with approval on a number of occasions:

"The court not only ascertained what moneys the husband had, but what moneys he could have had if he liked, and the term ’faculties’ describes the capacity and the ability of the respondent to provide maintenance".

See,also, Lord Merriman, P., in Klucinski. v. Klucinski (1953) 1 ALL E.R. 683, at p.683: [*429]

”It is elementary law that, in assessing the amount of maintenance, (the Court) ought to take into account ... not merely the husband’s basic wage, but his earning capacity”.

In the instant case, from the respondent’s own evidence that he does extra work for various friends and acquain­tances, though without getting paid, and that he would be prepared and able to earn more money if his son needed his help, I find that the respondent's. potential earning capacity is beyond his present actual earnings of C£204.

Finally, I have in my determination disregarded the sums received by. the applicant by way of assistance from her. children relying on the authority of Christodoulidou v. Christodoulides and E.C. v. A.C., where monthly allowances to the wife from her mother and brother respectively were disregarded in that, in the absence. of any legal obligation to pay them, they could be interrupted at any time. This, I believe, is an aspect of the wider principle demonstrated by Ashley v. Ashley, where National Assistance Board benefits received by the wife were disregarded on the basis of the principle that the husband should not be allowed to shift his responsibility to maintain his wife on society. In this respect, I wish to stress the fundamental significance to the law of the state of marriage, stemming from its even more fundamental moral end, which the law sanctions and protects by means of its recognition and remedies [*430] including the present one of reasonable maintenance to the wife. The responsibilities involved in marriage are among those most sacred and honourable and are not lightly to be disregarded. Their. legal enforcement, to my mind, is not only a practical necessity but also strengthens the very institution of marriage itself and underlines the import of matrimonial harmony.

On the basis of the application of the principles which I have expounded to my findings of facts in the instant case, I consider the amount of reasonable maintenance which the respondent should provide to the applicant for her needs, including the payment of rent, to be C£80.- per month. Accordingly, I find that, since the 16th October 1981, the respondent has been guilty of wilful neglect to provide the applicant with reasonable maintenance and I hereby make an order ordering the respondent to pay to the applicant the sum of C£80.- per month for her maintenance. As. the applicant has, on her own evidence, since the 16th October, 1981, been in receipt of contribu­tions from her children supplementing the C£23.- per month rent paid by the respondent, I do not make this order retro­spective to the date of the application but order that it shall take effect as from the 1st April, 1982.

The costs of this application are adjudged against the respondent, to be assessed by the Registrar,

Respondent to pay to applicant

£80.- per month as maintenance.