Cypriot Supreme Court increases maintenance for wife and children due to husband's increased income and new family obligations.

[*167] 1979 Oct 8

(NIKITAS, D.J.)

IN THE DISTRICT COURT OF NICOSIA

In the matter of a maintenance application by Maria A. Philippou of Meniko for herself and as natural guardian and nearest friend of her minor children. Anastasios, Anna,Costakis and Katerina Filippou,

Applicant,

and

Andreas. Philippou Tanteles,

Respondent.

(Application No.49/75).

Husband and wife - Maintenance for wife and children - Quantum - Maintenance order - Variation - Principles applicable - Whether obligations of husband towards children not born in lawful wedlock can be taken into account - Change in the husband’s financial position

- Amount of monthly contribution increased.

G. Papatheodorou, for the Applicant.

N. Andreou, for the Respondent.

JUDGMENT

The following judgment was delivered by:-

NIKITAS, D.J. The parties married in March 1959. [*168] They are the parents of four children. Tassos, the eldest, is now aged 21. Anna was born in June: 1962 and consequently she was aged 17 last birthday. Costakis and Katerina are 16 and 14 years old respectively. The break-up of the marriage occurred in 1975 and the parties have been living apart ever since. On 13th January 1976 a consent order was made whereby the respondent husband was adjudged to pay £20.- a month for the; maintenance of his wife and four children. Subsequently by order of the Court dated the 23.7.77 the amount was increased to £27.- per month. From what I can gather from the record this sum was awarded for the maintenance of the wife and the three minor children of the marriage, Tassos having attained majority in the meantime.

The wife now seeks an order increasing the amount of maintenance to £60.- a month. She swears in her affidavit that since the making of the order she is not in full employment owing to her bad health, whereas the income of her husband has increased considerably. The principles governing the quantum of maintenance have been

discussed in Antoniou v. Antoniou (1969) 1 C.L.R. 309. As long ago as 1891 Lindley L.J. in Wood v. Wood (1891-1894) All E.R.

Rep. 506 at p. 508 enumerated the factors to be considered.

The circumstances which have to be taken into account are -

(i) the conduct of the parties; [*169]

(ii) Their position in life, and. their ages and their respective means;

(iii) the amount of the provision actually made;

(iv) The existence or non-existence of children, and who is to have the care and custody of them;

(v) any other circumstances which may be important in any particular case.”

See also the analysis of the considerations to be borne in mind when determining the amount of maintenance occurring in Attwood v. Attwood (1968) 3 All E.R. 385 at p. 388. An order for maintenance may be varied if the Court is satisfied that there is a serious change in the circumstances of the parties such as a change in the needs of the wife and children or in the financial position of the parties. The question whether there is a change of circumstances is one of fact and degree.

The applicant and her four children live at Meniko in a house which she owns. She is employed by a doctor at Nicosia as a charwoman. She stated in evidence that her weekly wage is £7. - but her average monthly earnings do not exceed £20.- because she is affected with varix and is unable to work regularly. On a consideration of the relevant evidence I find that she is regularly employed and that she is earning at least £7. - a week. In addition she has an income of about £40.- a year from her immovable properties at Meniko. [*170]

The applicant gave evidence concerning the needs of the family for food, clothing and travelling expences. Anna and Costakis are gymnasium students and their mother in her evidence referred to the fees paid for their schooling. I have no doubt that applicant exaggerated her expenditure. She has said for instance that she pays £100.- annually for immovable property tax and other taxes and that she needs over £100.- a month for food and school fees for the three children. As regards Katerina she plans to send her to a school for learning the trade of a seamstress at a fee of £130.-.

The husband had been cohabiting’ with another woman .Miss -S.… since separation. They had two children aged three years and 17 months respectively at the date of trial. The second child was born after the maintenance order was varied. The respondent supports his mistress and the two children. They all live together at Astromeritis in the house of the mistress who works occasionally earning £4.- or £5.- a day whenever she finds work. The evidence of witness Voskos who gave evidence for the applicant tends to support such a finding. At any rate respondent conceded that on occasions Miss S.… works with him. It will be noted that respondent is a mason. The legal implications of the facts just mentioned have not been discussed by counsel when addressing the Court. I think that I am entitled to say on the authority of Roberts v. Roberts (1968) 3 All E.R. 478 that respondent’s new obligations have a bearing on the issue under consideration. Rees J. stated the principle in the following terms [*171] at p. 484.

“Our conclusion, therefore, based on principle , authority and practice, is that, when fixing the amount of maintenance, or permanent alimony, a court is entitled (indeed, is bound) to have regard to all the relevant circumstances of each particular case, including obligations and advantages which may not be legally enforceable,”

Commenting on the weight to be attached to .obligations of this nature the learned judge said at page 486.

“So long as an aggrieved wife has a choice whether or not to seek dissolution, so long as she has alternative remedies, we can see no injustice in requiring the courts to take into account obligations from a second marriage, particularly if, as Hodson, L.J. said, the just claims of the first wife are not, in any event, to be ignored. We think it follows, however, that it must be rare, when the aggrieved wife has sought an alternative remedy (as in the present case), for it to be right that her claim to support should be postponed to the claim of a mistress, even though this must be taken into account for whatever weight it is held to bear.

I shall now consider briefly the financial means of respondent. In July 1977 when the sum awarded against him was increased to £27.- per month he was employed by a building contractor and the rate of his wages was £21.090 [*172] per week. In his affidavit he swore that his weekly wages increased to £26.- In his evidence before me he stated that he earns £30.- a week net. Respondent clarified that occasionally he is employed by building contractors and at other times he undertakes small building jobs for his own account. In answer to counsel for applicant he conceded that (a) there is a great demand for masons; (b) masons may earn as much as £40.- or £50.- a week. Having seen the witness giving evidence I believe he did not disclose his true earnings. It is my finding that they somewhat exceed the amount stated. It is plain therefore that since the making of the order the respondent’s income increased. On the other hand the education of the three children of the marriage enhance the family’s needs. In these circumstances and having taken into consderation every relevant factor it is fair and reasonable, to order the respondent to increase his contribution. Accordingly I hereby order respondent to pay £36.- per month as from 1.10.79. Respondent will pay £15.- towards costs.

Maintenance order for £36.- per month. Respondent to pay £15’- towards costs