Divorce granted on desertion grounds where wife withdrew from home with no intent to return.

[*7] 1983 May 11

(A. LOIZOU, J. )

MATRIMONIAL JURISDICTION

Charalambos S. Patsalides,

Petitioner,

v.

Emily Ch. Patsalides, then

Emily Kopecka,

Respondent,

(Matrimonial Petition No. 3/83).

Matrimonial Causes - Divorce - Desertion – Withdrawal of respondent from conjugal home who has no intention to resume co-habitation - Desertion proved.

A. Danos, for the Petitioner. Respondent absent.

JUDGMENT

The following judgment was delivered by: -

A. LOIZOU, J. : This is a husband's petition for divorce on the ground of desertion. The respondent-wife, though duly served, failed to enter an appearance but after being served with the petition she forwarded to the Registry of the Supreme Court of Cyprus, Nicosia, a statement which has been filed in these proceedings giving her own version. Though this is not in strict compliance with the Rules and in effect the case will be treated as decided in default of appearance, yet I shall pay due regard to its contents and the matters raised therein by her, to the extent that they can be treated as admissible evidence, as being admissions against interest, etc.[*8]

The parties were married on the 20th July, 1978, at the Municipality Office at Pardubice, Czechoslovakia. After their marriage the parties lived and cohabited at Prelouc, Czechoslovakia and there has been an issue of the said marriage, a daughter, named Elena, born on the 21st June, 1978, now living with the respondent-wife in Czechoslovakia. Subsequently the parties came and lived in Cyprus but in November 1979 the respondent-wife left the petitioner and has ever since lived separate, though he visited her and his daughter in Czechoslovakia in July 1980.

It appears that the respondent for the reasons explained in her statement, i.e. differences in culture, language and climatic conditions, is not prepared to return to Cyprus and in fact, as she put it, “in view of the fact that the plaintiff lived permanently in Cyprus and I live in Czechoslovakia and that there is no hope of any agreement on the common place of residence, I believe that our marriage cannot fulfil its social function”. She further stated that she is prepared to agree to a divorce provided that their minor daughter Elena would be entrusted to her for parental care and that the father of the child would he ready to pay monthly for her maintenance by order of the Court. On this point of maintenance, the petitioner-husband was questioned by the Court and gave his income derived from “being a green grocer pedlar at C£150.- per month and stated that he is willing to pay C£25.- per month for the maintenance of his daughter. [*9]On the totality of the evidence before me, I am satisfied that there exists in law desertion on the part of the respondent-wife. In addition to the withdrawal of the respondent from the conjugal home, there is evidence to suggest that she has no intention to resume cohabitation. The state of separation that exists is clearly attributed to the animus deserendi on the part of the respondent wife.

If any auhtorities on the legal principles involved are necessary, reference may he made, inter alia, to the cases of Avraam v. Avraam (1979) 1 C.L.R., p,661; Eleftheriou v. Eleftherios Charalambous (1980) 1 C.L.R., p.600; Ioakim v. Orihuels (1981 ) 1 C.L.R. , p.357; Catlin v. Catlin (1982) 1 C.L.R., p.117.

I accordingly find the case proved and I grant a decree of divorce nisi in favour of the petitioner on the ground of desertion by the respondent-wife. The question of the custody of the child which lives with the respondent-wife in Czechoslovakia now and the arrangements that have been made for her care and upbringing will be considered under the provisions of section 2 of the Matrimonial Proceedings (Children's) Act 1958, together with the application for the making of this decree absolute. In the circumstances there will be no order as to costs.

Decree nisi granted. No order as to costs.