Court allows damages for breach of marriage promise despite virginity and character incompatibility claims.

[*58] 1981 September 26

(PIKIS, P.D.C.)

IN THE DISTRICT COURT OP LARNACA

Kyriakou A. Yianni,

Plaintiff,

v.

Andis Philippou,

Defendant.

(Civil Action No. 192/81).

Contract - Contract of marriage - Virginity - Whether a fundamental term - Level of education of one of the parties - Not an implied fundamental term although it may be made the subject of an express term at the party’s option - Incompatibility of character not in itself a ground for the dissolution of an engagement.

Damages - Breach of promise of marriage - Principles applicable.

A. Koukounis, for the Plaintiff.

A. Mathikolonis, for the Defendant.

JUDGMENT

The following judgment was delivered by:-

PIKIS, P.D.C.:- In August 1980 the [*59] plaintiff and defendant promised to marry one another after an introduction of friends and relations. The engagement is an admitted fact. Also it is common ground that following this engagement the parties became friendly, moving about as a betrothed couple and were spending numerous evenings together. In the course of this association and in its context they had sexual relations. Some two months later the engagement received ecclesiastical blessing on 18th October 1960. Thereafter the parties began living together as husband and wife, co-habiting in the house of the defendant at Larnaca.

On 7th January 1981, as it is again admitted, the defendant in no uncertain terms told the plaintiff he wan ted to bring their engagement to an end and dismissed her from his house. Her father and brother accompanied the plaintiff in what must have been, by all accounts.;, for the plaintiff, an unpleasant experience of collecting her belongings and moving the plaintiff back to the parental home.

Conflicting contentions were made as to the relationship of the parties and what precipitated the dissolution of the engagement. It is the case of the defendant, adumbrated in the pleadings and explained in evidence that he brought this engagement to an end for three reasons: (a) Because his fiancee was not a virgin, a fact he allegedly ascertained on the first occasion they had sexual relations; (b) that plaintiff made false representations about her education; and (c) incompatibility of characters. [*60]

The subject of the virginity of the plaintiff was evidently made an issue soon after defendant had carnal knowledge of the plaintiff. He thought it fit to report his belief to the relatives of the plaintiff and eventually it was agreed that the matter should be referred to a gynaecologist. To this examination the plaintiff willingly submitted. Manifestly the defendant attached considerable importance to the virginity of his fiancee, for, in his contention, lack of virginity on the part of a single girl betrays unchastity.

I have received conflicting versions as to the doctors opinion. In the contention of the plaintiff the doctor concluded that she was a virgin prior to her sexual encounter with the defendant and the matter ended at that, arousing thereupon love and affection on the part of her fiance Another story was given by the defendant. Although he was not allowed to refer to what the doctor told him, in the absence of the plaintiff, the inference from his evidence is that the doctor confirmed his suspicions that plaintiff was not a virgin. In evaluating these two versions I cannot overlook that shortly after this visit to the doctor relations between the parties were restored and soon afterwards they proceeded with an ecclesiastical engagement. On balance I incline to accept the evidence of the plaintiff on the subject and I so find. In my judgment the raising of the subject of her virginity long afterwards is but an excuse on the part of the defendant in order to avoid his obligations under the contract of marriage. Even if I were to [*61] accept defendant’s version on the subject it would be of no significance for, assuming that virginity is a fundamental term to a contract to marry, the defendant, on any view of the evidence, waived any right he might have to avoid it on this score by renewing his promise and by accepting the reality as it came to be revealed to him.

The subject of the education of plaintiff was the subject of heated controversy in these proceedings. In the contention of the defendant the cousin of plaintiff represented in her presence that she was a graduate of a secondary school, a Gymnasium. To this assertion the plain tiff remained silent. The defendant alleged that he attached considerable importance to the education of the-plaintiff. It is rather strange that he did not seek to elicit her educational level by holding any kind of conversation with her. He maintained he was content to rest with the assurances of her cousin on the subject attaching apparently only formal consequence to her educational qualifications. Anyone who hears the plaintiff speak as I had occasion to, would immediately concluded that the leval of her education is quite low. Independently of the allegations of the defendant as to the importance he attached to the statement of plain tiff’s cousin he could not have treated them as conclusive for on at least three occasions soon after the engagement he inquired of the plaintiff what her education was. To this, in his contention, she remained mute, persistently refusing to give any reply, If defendant’s story were accepted the reactions of the defendant to his inquiries, couple with her [*62] apparently low education, should have left him in little doubt as to what her true education was. Nevertheless he proceeded to formalize the engagement, waiving any rights he might have in this area. In my judgment the level of education of one of the parties is not an implied fundamental condition to a contract of marriage although the level of a party’s education may be made the subject of an express term of the contract, at the party’s option. That defendant must have been fairly cognizant with the level of plaintiff’s education is obvious from the fact that he referred her to an elementary school teacher immediately after their official engagement and in fact he asked her, notwithstanding her protestations, to receive a number of lessons. In my judgment there were no representations about the level of the education of the plaintiff although it must be said that the defendant was rather disturbed on discovering that plain tiff’ s education was on any view very elementary. The defendant continued his co-habitation with plaintiff after gaining full knowledge as to the level of education of the plaintiff.

Incompatibility of characters is not, in itself, a ground for the dissolution of an engagement. I had occasion to debate the same subject in another action for breach of promise, notably Action No.1871/1972, delivered on 17th December 1973, Famagusta District Court, when I pointed out that the only conditions implied in the formation of a contract to marry are set out exhaustively in the decision of the Supreme Court in Theodorou v. Sekkeris (1971) I C.L.R. 337 and that incompatibility of characters is not one of them. Incompatibility is relevant to the determination [*63] of damages for injury to feelings on account of separation would inevitably be mitigated by awareness of incompatibility in one or more respects. In my judgment the defendant is guilty of breach of his promise to the plaintiff and what remains to be determined are the damages to which the plaintiff is entitled to. The principles governing damages in an action for breach of promise to marry were settled in the case of Markou v. Michael, 19 C.L.R., 282. and were affirmed on many subsequent occasions, including the cases of Savvas Paraskevas v. Despina Mouzoura I C.L.R. 88 and Papakleovoulou v. Elia and Another (1972) I C.L.R. 222.

In an action for breach of promise of marriage plaintiff is entitled to damage under two heads:

A. For loss of the bargain, that is the loss of the right to be maintained by the future spouse. In evaluating this loss regard should be had to two factors - i. The prospects of the plaintiff to marry in future, and

ii. the means of the defendant.

With regard to the first I attach importance to the evidence of the father of the plaintiff that the break up of an engagement still presents difficulties in the way of a girl getting engaged and marrying in future, particularly in the context of the environment in which they live. I am well aware that in many other countries the cause of breach of promise has been abolished, including England. I cannot however overlook that our legislature in its wisdom has not[*64]thought fit to introduce similar measures in Cyprus and the duty of the Court is to give vent to the law as laid down by the legislature. The means of the defendant are on any view low. The brother of the plaintiff rather overestimated them but certainly defendant himself underestimated them. In my Judgment his earnings exceed the sum of £100 but not by much. And this is my finding in this area. His earnings are therefore very limited. And the plaintiff, although she could look forward to a degree of comfort and security after marrying to defendant, his earnings could not assure her of any great comfort.

B. The second basic-consideration bearing on the award of damages is the injury to the feelings of the plaintiff. In my judgment the plaintiff was badly injured to be dismissed in the summary way she was and the injury was made worse still by the fact that she belongs to a family and a community that have strict standards on the subject of chastity and marriage. The character of the parties and their conduct up to the time of trial are relevant and may legitimately be taken into account by the Court evaluating the damage to which plaintiff is entitled to. I cannot overlook that defendant persisted throughout these proceedings, contrary to my findings, that the plaintiff was not a virgin ,adding so it seems to me, insult to injury.

In the light of the totality of the facts before me, I award the plaintiff £650 damages plus costs to be assessed by the Registrar on the scale of claims between £500 and £1,000.

Judgment for plaintiff for £650.-

with costs.