Criminal assault history allows wife to exclude husband from her property despite marital status.

[*157] 1977 April 20

(HJICONSTANTINOU, S.D.J. )

IN THE DISTRICT COURT OF NICOSIA

Themis Papasavva,

Plaintiff,

v.

Theodoros Papasavva,

Defendant.

(Action No. 5170/76).

Husband and wife - Marriage breaking down - Wife petitioning for divorce on the ground that husband had behaved in such a way that she could not reasonably be expected to live with him - Matrimonial home belonging to wife - Whether entitled to exclude husband - Whether husband can be treated as a trespasser - Section 10 of the Civil Wrongs Law, Cap. 148.

E. Tavernaris with C. HjiNicolaou, for the Plaintiff.

X. Syllouris with C. Adamides, for the Defendant.

DECISION

The following decision was delivered by: -

HJICONSTANTINOU, S.D. J. : In this action the plaintiff claims:-

(a) An injunction restraining her husband from living or remaining in her house at Themis street No.3 Strovolos, Nicosia, and [*158]

(b) An order that the husband vacates the said house and deliver to her vacant possession of it.

The material facts of the case can briefly be set out as follows:-

The parties were married on 20th August, 1972, and made their matrimonial home in a dwelling house which belonged to the wife and is the one described in claim (a) above. At the time of the marriage the husband was 58 years of age and the wife was by two or three years younger. The husband, was a divorced man with five children and the wife was a widow with only an adopted married daughter, who was and is still living in the United Kingdom. There are no children born out of this marriage.

According to the wife, the marriage was extremely unhappy. She was very often vulgarly insulted, seriously threatened and badly assaulted by her husband. Indeed, the husband, having pleaded guilty to a criminal charge of having on 6.3.74 committed an assault occasioning actual bodily harm on his wife, was, on l8.6.74 bound over for one year to keep the peace and be of good behaviour. He had also pleaded guilty to two other similar charges of the 23rd June, 1975 and the 18th July 1975 respectively, and was on

6.11.75 sentenced in respect of both these charges to six months' imprisonment suspended for three years. [*159]

In her evidence the wife stated that in spite of the aforesaid sentences her husband continued threatening, insulting and assaulting hero So she was forced to leave and did on 12.11.75 leave the home. Originally she went and lived for some time in a hotel (bed and breakfast only), but she found it too expensive for her. So she moved to the house of the mother of her adopted daughter. The husband of that woman has been abroad working to earn the living of his family, but is now returning home for good. So the plaintiff is being asked to find another place to live jn. She hardly manages to maintain herself out of her on!;: income from the rents she collects from the adjoinir *•? the house, subject-matter of these proceedings and ' :- small apartment in the rear part of same. The busbar:' makes no provision for his wife’s maintenance. He r? •id? in the matrimonial home but, as he stated in his evidence, he only goes there to sleep. He is not using the electricity and the telephoneso he did not pay electricity and telephone charges, and for the last eight months there is no electricity supply in the

home and the telephone has been disconnected. He, however, denied the wife’s allegations that after his last sentence

he continued threatening, insulting and assaulting her. He said that the reason why his wife does not return home is -because she is being threatened with killing by her heirs who do not wish him to inherit her. He added that he loves his wife and wants her to return home and live with him. [*160]

It should be noted that soon after she had left home the wife instituted divorce proceedings before the ecclesiastical court. Such proceedings are based on the ground-allegation that the husband had behaved in such a way that the wife could not reasonably be expected to live with him. Those proceedings are still pending, and it is understandable that if the wife's said fears are removed and she returns home, her claim before the ecclesiastical court will be adversely affected if not altogether defeated. The husband has given no reason as to why the wife left the matrimonial home, whereas what he said as to why she is not returning is untenable. I find it extremely difficult to avoid the inference that the wife must have had very strong reasons for leaving home with all her furniture, ornaments, personal effects etc. and putting herself into such a difficult position as it has been explained. It is my conviction that the reasons for her decision to leave home and not to return whilst the husband lives in the home are true, genuine and strong ones. It is, I think, an established fact that this marriage has broken down and it cannot, at present, be expected that the parties may reconcile and cohabit. Nor does the husband, in my opinion, believe for a moment that his wifeis going to return home whilst he is there. I believe that a great hardship will be caused to the wife if the injunction and the order sought are refused. On the other hand there was no evidence from the husband that he would have any special difficulty in finding suitable accommodation [*161] for himself if the injuction and the order asked for by the wife were to be made.

I have so far dealt with the factual aspect of the case. I shall presently deal with the legal aspect of the case.

Some of the English leading authorities on the matter are the following:

In SYMONDS v. HAL LETT (1883) 24, Ch. D. 346 the husband and wife lived in the house together for sometime. They then ceased to cohabit. The wife began proceedings for divorce. The wife commenced an action in the Chancery Division claiming administration of the trusts of the settlement, and she claimed an injunction. An interim injunction was granted by CHITTY", J., on the motion of the wife to restrain her husband from entering on or taking or continuing in possession of the leasehold house and from removing articles of furniture or plate promit. The wife deposed that the husband had for about twelve months ceased to reside at the house, but went there usually on Thursdays and Fridays and slept one night a week; and she said that he had already taken away some of the settled plate, furniture, chattels and effects. When COTTON, L.J., agreed in dismissing the husband’s appeal against the interim injunction he said (ibd., at p. 351 ):

"I concur in the view that this injunction ought not to be discharged, on this ground, [*162] that looking at the circumstances of the case and at the facts which we have before us, and the affidavit of the husband, he cannot be considered as desiring to use or to enter this house as a husband, to enjoy the society of his wife, or to consort with her as his wife. Therefore, although I must not, by concurring in the view that this injunction shall stand, be considered as in any way favouring the view of it which has been urged in the arguments, yet I think that under the circumstances the best course till the hearing of the case, when the matter can be decided, is not to discharge the injunction which has been granted."

The above passage had been adopted by MORRIS, L.J., in the case of GORULNICK v. GORULNICK (1958) 1 All E.R. 146, and at p. 150 he added:

"It seems to me that there was a clear separation there between the wife's proprietary rights and the matrimonial position: it was said the husband had for some time voluntarily abandoned his privilege of consorting with his wife".

"Approaching the matter on the basis on which counsel for the wife has made his submissions, it seems to me this case does not therefore depend on the fact that the wife is the owner of the house. I agree entirely that, pending the hearing of a petition, the court has wide powers to make orders that seem right, sometimes to preserve the interim [*163] position and sometimes having the effect of restraining the right of one spouse to live under the same roof as the other”.

HODSON, L.J., delivering the leading judgment in the Court of Appeal in the GORULNICK case (supra) at p. 147 said:

"A later

decision of the Court of Appeal which is often referred to in this class of case was SHIPMAN v. SHIPMAN (1924) 2 Ch. 140. In that case no petition for divorce or judicial separation was pending. The wife owned the house and was anxious to make a living out of it by taking in lodgers and she said that she had been ill treated by her husband. She succeeded before RUSSELL, J., in obtaining an interim injunction restraining her husband from entering the house or interfering with her possession The case of SYMONDS v. HALLETT (1883)

24 C.L.R. 346 was referred to and, without reading the judgments, it is clear to my mind that the members of the court were of opinion that ..... the husband could not be properly treated as if he had been a stranger, having regard to the special relationship which exists between husband and wife in that they have a duty to live together. Nevertheless, all the members of the court were agreed that the injunction should stand, ATKIN, L.J., and also SIR ERNEST POLLOCK,M.R., [*164] referred to the fact that substantial acts of cruelty were established even though only by affidavit against the husband because of the admissions that he had made, and, therefore, they were not disposed to accept the argument which is always addressed to the court in these cases that to accede to such an application is tantamount to pronouncing a decree of separation between the parties for the time being. On the facts of the case it was held that the learned judge exercised his discretion rightly. SARGANT,L. J., pointed out that the remedy was a special remedy, a discretionary remedy (1924)2 Ch. at p. 147”:

“'The husband's conduct has been such that he has apparently lost the right to the matrimonial consortium, and, therefore, he is in no better position than a stranger, and it follows that the 'injunction was rightly granted'”.

“ATKIN, L.J., referred to the strength of the case against the husband from the point of view of admitted violence and did not emphasize the need for protection of the wife's business, a business which she proposed to carry on of taking in lodgers and had carried on previously for some years in the house which she owned."

In the case of the NATIONAL PROVINCIAL BANK LTD. v. AINSWORTH (1965) 2 All E.R. 472, a House of Lords’ case, [*165] it was held that a wife’s rights in relation to occupation of the matrimonial home, where that was the property of her husband, were personal rights against her husband, flowing from her status as wife, and did not confer on her any equitable interest or right of property in the land, nor was she, if she lived in the matrimonial home, there as licensee of her husband.

LORD HODSON at p. 477 said:

"The matrimonial law did not, however, at any time give the wife any property in the house in which she lived with her husband unless she could rely on a settlement. His duty is to live with his wife and to support her, but she has no proprietary rights in the house by virtue of her status as a wife. If her husband leaves, her, the right which she had to be left undisturbed is a personal right and does not attach itself to any specific piece of property which may at a given time be the home in which the spouses have lived together ....... The view is accepted that the court has a discretion to be exercised In the interest of the parties to restrain or postpone the enforcement of legal rights but not to vary agreed or established rights to property in an endeavour to achieve a kind of palm tree justice."

Also at p.

479 the same Lord said: [*166]

"When there is a genuine transfer, there is no reason why the wife’s personal rights against her husband, which are derived from her status, should enter the field of real property law so as to clog the titled of the owner."

In the same case LORD UPJOHN at p. 483 said:

"Neither the common law nor the ecclesiastical law ever went further, or gave to the wife any right to occupy any particular matrimonial home which was the sole property of the husband."

And further down he said:-

"A wife on entering a matrimonial home, the property of her husband, has no rights even inchoate in that home which the law will recognise or protect: see LIOYDS BANK, LTD. v. OLIVER'S TRUSTEE (1953) 2 All E.R. 1443."

And at p.

484 he said:

"The earlier authorities were recently considered in GORULNICK v. GORULNICK (1958) 1 All E.R. 146, where the Court of Appeal refused to interfere with the discretion of WALLINGTON, J., who in divorce proceedings refused to grant an interlocutory injunction restraining the husband, against whan the wife had brought a petition for divorce on the ground of cruelty, from entering the matrimonial home which was her property. Thus, the principle is that the [*167] court, when giving effect to the legal and equitable rights of the spouse who is owner of the property by way of injunction or possession, always does so subject to the overriding mutual marital right and duty of the spouses to live together." And at p. 487 he said:

“Now, however, the deserted wife’s right is said to be based on principle and not to stem from procedural considerations. It is said to be a licence couple with an equity. In the words of LORD DENNING, M.R., in the Court of Appeal (NATIONAL PROVINCIAL RANK, LTD., v. HASTINGS CAR MART. LTD. AND OTHERS, (1964) 1 All E.R. 688 at p. 695:”

“The wife has no tenancy. She has no legal estate or equitable interest in the land. All that she has is a licence. But not a bare licence. She has a licence coupled with an equity. I mean an 'equity' as distinguished from an equitable interest. "

In the case of BASSETT v. BASSETT

(1975) 1 All E.R. 513, the facts were very similar to the ones of the case under consideration with the exception that the matrimonial home was not the exclusive property of any one of the spouses as it is in the present case. It was there held:

"(i) When dealing with an application to reject a spouse from the matrimonial home, [*168] particularly where it was clear that the marriage had already broken down, the court should think essentially in terms of homes, especially for the children, and then consider the balance of hardship likely to be caused by the making of such an order against the hardship likely to be caused by refusing it; the court should be careful not to underestimate the difficulties of finding somewhere to live bearing in mind that the break would have to be made in the relatively near future and that property rights as between the spouses were of comparatively minor importance. If the circumstances were such that a workable scheme could be arranged so that the spouses could live together more or less separately in the matrimonial home pending the final determination of their respective interests in it, the situation would not be an 'impossible' one, nor would the wife require 'protection’. Where an ’impossible’ situation did exist, the sooner it was ended the better. Delay in such cases might be a serious denial of justice and sometimes a grave failure on the part of the court to exercise its protective powers.”

“(ii) The appeal weald be dismissed for, on the [*169] facts, it could properly be said to be ' impossible' or 'intolerable' that the wife should be required to live in theflat with the husband in view of the extremely restricted accommodation there and the relationship between the parties, the alternative accommodation at the wife's parents' home clearly offered no solution and there was no evidence that the husband would find it impossible to obtain other accommodation for himself."

Before concluding on the matter it is made necessary to refer to two submissions made by the learned counsel for the husband in his final address. The first submission was that there is no cause of action because as between husband and wife there can be no action for trespass in view of the provisions of section Io of the Civil Wrongs Law, Cap. 148.

I cannot agree with such a submission. The section merely says that "no action shall be brought in respect of any civil wrong committed before or during the subsistence of a marriage by either party thereto or..................." but according to the proviso to the same section "any spouse may, for the protection and security of his or her own property, bring an action against the other for any civil wrong committed by him or her in connection with such property". I agree that on the basis of the authorities that I have mentioned above the [*170] husband cannot be regarded as a trespasser when he enters or lives in the matrimonial home, although by his conduct he has lost his right to consortium. It is not anyway, a matrimonial home which the husband has created. He is not, however, sued as a trespasser. In this action the wife seeks protection in the ownership, use and enjoyment of her own movable and immovable property, a right of which she is deprived by reason of her husband’s conduct. If the husband’s conduct is allowed to defeat the wife’s right to possess, use and enjoy her own property, then a great injustice would be done to her. I find that the wife is clearly entitled to claim as she does.

A second submission made by the learned counsel for the husband is that the wife is estopped from claiming as she does or the wife has waived any possible right that she might have against her husband because she withdrew the first divorce proceedings and/or because she lived with her husband after the latter had received sentence for assaulting her.

According to the wife’s statement, which as I have said earlier I believe as true, she was forced to leave her house because the husband continued threatening, insulting and assaulting her inspite of the last sentence imposed on him by the criminal court. Moreover, she is not returning home because she still has the same fears. However, I think that such a submission might, perhaps, be made in divorce proceedings, and not in the present proceedings. I find that there is no substance in the [*171] submission, I find it to be unsustainable and I need not expand on it.

In the light of all the facts of the case, a summary of which has been given at the beginning of my judgment and in view of my findings made on those facts, guided by the principles enunciated in the authorities cited earlier, I find that the plaintiff’s claims are justified.

In the result I order the plaintiff’s husband to vacate the matrimonial home at Themis street, No. 3, Strovolos on or before the 30th April, 1977 and I also grant an injunction restraining him from returning to, entering or attempting to enter in the said house against the will of the plaintiff wife.

As regards the. question of costs, in view of the rare nature of the case I order that the defendant pays only £15.- towards the plaintiff's costs.

Order against defendant-husband

to vacate the matrimonial home

and injunction restraining him

from returning or entering the

said house against the will of

the plaintiff-wife.