YIOLA STAVRAKI
L.L.C.
ADVOCATES
A Comparative Analysis of Divorce Law in England and Cyprus
I) Introduction
III) ‘The Rise of Divorce in Britain and Cyprus’
IV) ‘The History and Development of Divorce Law; Grounds
for Divorce and Critique’
V) ‘Transfer and Division of Property post-Divorce’
VI) ‘Mediation in Family Disputes –Objectis
and Developments in Britain and Cyprus’
VII) ‘Parental Responsibility in Britain and
Cyprus’
VIII) Conclusion
I) Introduction
A full understanding of the developments in any particular
country is only possible if its experience is set in the context of the
experiences of other countries (Cochrane et al, 2001: 2). Yet, general works on comparative law are
particularly problematic (Bradley, 2003: 127; Bradley, 1999: 127; Gutteridge, 1949: 31-32).
Issues of the family are inextricably linked with religious and
political values and are largely determined by the existence of a power
structure in society, reflected either in the constitution itself (
In
The analysis of the attributes
and influences of the two systems of family law will be linked to the social,
political and institutional importance attributed to marriage as ‘To know only
the end result, with no understanding of the starting points, is to have less
that half of the picture’ (Murphy et al: 2004).
Focus will then shift to the manifestation of the rates of divorce in
both systems, examined in light of statistical evidence and accompanied by an
explanation of these social trends. This
thesis will then proceed to compare the provisions of divorce law in
Although English family law adopts the common law and Cypriot family
law the civil law tradition, nonetheless, ‘…Underneath the rhetoric...and transcending
local and regional particularity, a similar story is being told about the roles
and relationships that are central in most people’s lives’ (Glendon,
1989: 2-3). Indeed, development in both
jurisdictions reflects a compromise between religious tradition and social
change. On the other hand, the
identification of broader tendencies across different societies may conceal the
deeper causes behind development in each jurisdiction. This essay will therefore seek to analyse the
deeper causes behind the development of divorce law in
Structure and Methodology
This essay contains both primary sources (interview with the
President of the Family Courts in
The present thesis contains both qualitative and quantitative work, as it combines an analytical comparison of the framework and laws of both systems with statistical data that support certain crucial observations made in the qualitative part of this work .
II) The Influences on Family Law in Britain and Cyprus, the Importance Attached to the Institution of Marriage and the Perceptions around Divorce
i) Marriage, Divorce and Family Law in Britain
English family law is unique as it fits well in its political
culture, economy and processes. It is a
highly politicised area, linked to the wider structure and organisation of
society. As marriage is considered the
foundation of a stable, well-functioning society (Home Office, 1998: 4) and
divorce has come to upset that balance, the latter has become ‘the unit of
measurement of failure in modern society by the 1960s’ (Smart, 2000: 365). Divorce is also believed to produce distress
and unhappiness to children (Rodgers and Pryor, 1998: 22) as well as long-term
damage, such as educational under-attainment.
Family life in
Equally strong has been the
influence of the Church, with Bishops sitting in Parliament, influencing the
development of family policy. English
family law has been derived from Canon Law (Canon B 30) and is based on a
religious concept of marriage (Church of England Report: 1955) with the Church
traditionally supporting procreation, confining sexual activity within marriage
and promoting companionship between the spouses. One should note that marriage ‘…is not simply
between two individuals. It entails a wider relationship…’ (Parliamentary
Debates: Lords: 1979). In the absence of a written constitution,
Britain’s conventions, assumptions and informal understandings have allowed
flexibility to the Crown, common law, the Church and Parliament to maintain a
religious construction of marriage which ensured that ‘The very existence of
society is bound up with the institution of marriage’ (Parliamentary Debates:
Lords: 1979). Hence, in
Class interests have
traditionally assumed a crucial role, as evidenced in the area of distribution
of property after divorce, analysed below.
Marriage was a means by which the diffusion of capital, status and title
between the two families could be beneficially cemented together (Gibson,
1994). In brief, English law was
admirably suited to an aristocratic and plutocratic society (Dicey, 1905: 222;
Dicey, 1914: 388-89; Eekelaar, 1978: 5-6).
Finally, English legal policy is
tied to a strong judicial culture (Cretney, 1999:
286; Eekelaar, 1984: 593) and judges often reinforce
the traditional values of the conservative society which they represent
(Thornton, 1997, 488). Indeed, until fairly
recently, judges have been appointed by the Lord Chancellor in an informal and
secretive fashion, with the result that most judges were white, male, middle
class and Oxbridge graduates, hence belonging to conservative groups.
The illustration of the
traditional commitment of English law to preserving the institution of marriage
enables an appropriate assessment of English legal policy on divorce which
depends on a particular family ideology and particular values and processes.
ii) Family Law
and Marriage in
The institutional and social
importance of marriage has also been traditionally appraised in
Unlike
When the British occupied the
island, they allowed the Church to maintain its competence on matters of
personal status, which was preserved under A. 111 of the 1960 Constitution of
Cyprus, signed upon
Despite the force of religious
tradition, the legislators in
Although the institutional
importance of marriage has been stressed by both the Legislature and Cypriot
family law judges, family law evolves and must reflect social change; ‘Family
law should not be static’ (Serghides, 2004: 74). In fact, divorce should not be considered a
threat to society, as in the case of
Finally, judges in Cyprus have not been as conservative as British judges, as there are currently many female judges and the majority do not belong to a middle-class and educational elite background; they have thus been more ready to accommodate secular change, despite the past family traditions of Cyprus.
III) The Rise of Divorce in Britain and Cyprus
Having analysed the traditional conceptions towards marriage and
divorce in
According to statistical evidence, British society has recently
undergone a galloping rise of divorce rates.
By the late 1980s,
In contrast to
In comparing the divorce rates in both jurisdictions, interestingly,
Annex 2 (p.76) illustrates that whereas
in Britain, the peak of divorce rates occurs in marriages of 10-14 years of
duration, in
Explanation of the Rise of Divorce
In Britain, the rise of divorce in 1972 (illustrated in Annex 1) may
be partly attributed to the Divorce Reform Act 1969, enforced in 1971, which
introduced ‘no-fault’ divorce, and may constitute ‘…a firmer indication of
trends in the propensity to divorce’ (Gibson, 2000: 6). This proves that ‘…People may be more ready
to escape from a situation which they deem, quite clearly, to be a mistake’ (Eekelaar, 1991: 54).
Further, divorce legislation is
often believed to undermine the patriarchal nuclear family as, through its
flexible provisions, it suggests that alternative ways of living are equally
acceptable (Abbott and Wallace, 1992: 4).
Rheinstein, however, denies that divorce law
has exerted a material influence on marital breakdown (Rheinstein,
1972: 266) as the impact of liberal divorce legislation is often only of a
short-term nature (Gibson, 2000: 43; Davis and Murch,
1988: 22-23).
Academics and sociologists have also referred to a moral and social
vacuum that opposes emotional attachments and favours self-fulfilment and
individual happiness (Gray, 1977: 341); ‘...Our society is in decay. Everyone is so concerned about themselves,
the ‘me’ generation…The family is falling apart’ (Klatch, 1987: 26-27). Such egocentricity may be considered the
result of the shift from a rural to an urban society, accompanied with the
emerging ideas of scientific humanism and feminism.
Women no longer enter marriage for economic stability purposes as
they have now become more independent and eager to pursue a career, even at the
expense of creating a family. Thus, ‘The
last quarter century has seen a noticeable movement away from traditional
patterns’ which is clearly ‘a reflection of an individualistic society’
(Gibson, 2000: 32). Maclean adds that
divorce rates rise with prosperity (Maclean, 1991: 128); a divorce occurs when
at least one party decides that the distribution of the future output will not
make him or her better off than outside marriage (Parkman, 1992: 35).
In
the invasion of the
island in 1974 by
Contrasted with
With regards to the influence of permissive legislation, Judge Serghides has questioned whether any liberalization of divorce law is linked to the crisis of the institution of marriage, agreeing with the opinion of English commentators above. Divorce is simply the result of the evolutionary attitudes and conceptions of the public towards the purpose of marriage (Interview with Judge Serghides, 22/12/04).
IV) The History and Development of Divorce Law; Grounds for Divorce and Critique
i) English Divorce Law
In assessing the English legal position towards divorce, the
analysis must begin in its historical origins and development, as an
appreciation of earlier traditions is essential to comprehend contemporary
legal policy.
Judicial divorce in this country has not marked a revolution but has
remained constant to the value of religion.
Reform has been highly individualistic as divorce was initially
inaccessible to the poor. It has also
illustrated a strong element of gender-inequality as only in 1923 was divorce
made available to both sexes on equal terms.
In general, the period from 1857, when divorce was first introduced, to
the year 1923, may be characterised by a slow and incremental divorce reform. Although the introduction of divorce in 1857
was itself a government measure, all subsequent reforms (with the exception of
the Family Law Act 1996) were private initiatives, hence demonstrating the
political sensitivity attached to divorce and its development from members of
society, expressing moral judgment in a somewhat organic way. The 1857 Act was itself a very conservative
measure, stressing the idea of continuity to ideals of the past. Although its aim was to make divorce a civil
process and enable access to it by the poor, the famous ‘double standard’ it
introduced actually placed a heavier burden on women to obtain a divorce. It was thus admirably suited to meet the
interests of the aristocracy of a patriarchal society, concerned to maintain
property within the family (Holdsworth, 1942 525; Simpson,
1986: 3; Beckett, 1986). One should not
forget, though, that this was but the first attempt to legalize divorce.
Given the high institutional importance of marriage, several attempts to reform the laws on divorce were vain, with the exception of the Matrimonial Causes Act 1937, introduced by an independent MP (Mr Herbert). This may be attributed to the compromise Herbert sought with both the Church and the Government of the day, illustrating the strong impact of both religion and politics on the development of family law. This Act has thus been described as ‘A lesson in the art of compromise’ (Redmayne, 1993: 183). It forms the basis of the current divorce law and has contributed to judicial recognition of non-discrimination for women. However, although it extended the grounds for divorce to include desertion, cruelty and incurable insanity, it was still largely conservative as the matrimonial offences grounds were still in place. Its conservative character is also evidenced by the compulsory 6 month waiting period between the issuing of a decree nisi and a decree absolute that was needed to examine evidence of adultery and to prevent parties to collude (which would undoubtedly threaten the sanctity of marriage).
The 1937 Act did produce liberal change, though; It
was certainly more liberal than the previous Matrimonial Causes Act 1923
allowing wives to divorce their husbands on the ground of adultery alone. Prior to the 1923 Act, though, divorce was
even harder to establish as the wife would have to prove rape, sodomy, bigamy,
incest, bestiality, cruelty or desertion for 2 years without reasonable cause
by the husband – an apparently heavy task for the wife. On the other hand, husbands could divorce their
wives on adultery alone since the 17th century, hence indicating the
traditional dominance of sex inequality in British society.
Following the 1937 Act, the Archbishop of Canterbury formed a Group
to investigate into the issue of divorce, suggesting breakdown as a ground for
divorce. This played a decisive role in
paving the way for the 1969 Divorce Reforms – the most radical legislation on
divorce. Equally important was the role
of the Church which changed its position after 1937, proving that ‘There has
been a strong element of continuity and close if not symbiotic relationship
between Church and State in the development of English marriage law’ (Bradley,
2003: 132).
In achieving reform, noteworthy has also been the role of the Law
Commission established in 1965, of which the report Reform of the Grounds of
Divorce, the Field of Choice (1966) led to the enforcement of the Divorce
Reform Act 1969, stipulating irretrievable breakdown as the sole ground of
divorce. As the Law Commission stressed,
‘…a good divorce law should seek...to buttress, rather than to undermine the
stability of marriage’ but, at the same time, ‘when, regrettably, a marriage
has irretrievably broken down, to enable the empty legal shell to be destroyed
with the maximum fairness and the minimum bitterness, distress and humiliation’
(Law Commission, 1966: para. 15). It continued that divorce law should
encourage reconciliation (ibid, para 16), the
importance of which was also stressed by the Finer Joint Action Committee
(Finer Report, 1977: para.
4.67 and para. 4.283(3)).
Interestingly, the Law Commission in 1966 had engaged in
negotiations with the Church, which proves both the high status of the latter
and the dominance of a conservative political culture, given the reluctance of
a Labour Government to intervene. One
may question, though, whether ideas of a ‘good’ divorce law can be sustained as
every divorce system seems to fit well into particular values and processes.
Divorce was also permitted on consent, provided there was a minimum
2-year period separation or unilaterally, a five-year separation. This development was very important as it
supported that the best remedy to divorce was for the parties to remarry and
start a new happy life (Smart, 2000: 372).
The idea was that ‘Unsuccessful marriages could be replaced by
successful ones’ (Johnson, 1968: 379).
This was closely tied with the idea of a ‘clean break’, analysed below,
and produced a more ‘democratic relationship’ (Giddens,
1998: 93).
The impetus for the Divorce Reform Act 1969 arose from a perception
that the fault-based divorce system had driven a gulf between reality and the
version of a divorcing couple’s matrimonial life presented to the courts,
thereby discouraging reconciliation (Eekelaar, 1991:
24-25). The Church, on its part, had now
recognized that ‘…The process of individualization was not necessarily or
automatically synonymous with moral decline…’ (Smart, 2000: 371).
In reality, a substantial
majority of divorce petitions under the Matrimonial Causes Act 1973, which
re-enacted the Divorce Reform Act 1969, were based on fault facts (Bradley,
2000:19; Bainham, 2001: 222). Yet,
the current use of the ‘fault facts’ does not respond to the reality of divorce
but serves to obtain a ‘quickie’ divorce – a special procedure now acknowledged
as universal - of which the waiting period is
only six months. Hence, the majority of
divorces are really by consent, being undefended.
The 1973 Matrimonial Causes Act was itself a hybrid law, adopting
both fault and irretrievable breakdown as conditions for dissolution, this also
reflecting the influence of the Church and the prevalent spirit of conservative
morality of the time. The 5 ‘facts’ (in
reality, fault ‘grounds’) contained in s. 1(2) of the Act were only modified
versions of the old offence grounds and were as follows: (a) committed adultery
that makes cohabitation with the respondent intolerable; (b) such behaviour by
the respondent that the petitioner cannot reasonably be expected to live with
the respondent; (c) desertion by the petitioner for a continuous period of at
least two years; (d) living apart for a continuous period of at least two
years, and consent by the respondent to the issue of a decree; and finally, (e)
living apart for a continuous period of at least five years. Thus, although a respondent may in theory
base his petition on irretrievable breakdown, such defence is likely to fail.
The ‘adultery’ fact will often allow immediate divorce by consent,
as the courts have no way of investigating the truth of the allegations. As the court held in Cleary v Cleary and
Hutton [1974], even if adultery has played no significant part in the
breakdown of the marriage, the marriage may still be dissolved if the
petitioner genuinely finds it intolerable to live with the respondent.
With regards to the respondent’s behaviour causing the breakdown of
marriage, allegations may vary as to their degree of severity to establish that
the petitioner cannot reasonably be expected to live with the respondent. For instance, in Livingstone-Stallard v Livingstone-Stallard
[1974], the court had to consider the parties’ methods of washing their
underwear, whereas in Richards v Richards [1984] (HL), the fact that the
husband never remembered the wife’s birthday or wedding anniversary was deemed
important. More serious complaints are
physical violence, pleaded in Bergin v Bergin [1983], where the husband
blacked the wife’s eye. One should note,
though, that it is not behaviour but cohabitation that needs to be proved
unreasonable (Cretney, 2000: 55). Further, although this test is objective, the
court must be placed in the position of the parties to determine whether
breakdown has occurred.
Concerning desertion, it has received a restrictive attitude by the
courts and is rarely alleged as a ‘fact’ leading to breakdown, as it requires
the couple to have lived apart for two years and to mutually consent to a
divorce that is sufficient to establish breakdown. In this respect, desertion can only be
relevant in exceptional cases, such as where the respondent refuses to agree to
divorce (Cretney, 2000: 57). Desertion consists of both the fact of
separation and the intention to desert.
It is interesting to note that factual separation may be established
even if the parties still live in the same house, provided there is no communal
life between the couple. Hence, in Le
Brocq v Le Brocq,
although the wife excluded the husband from the bedroom, the fact that she
continued to cook meals or him and that the husband gave her a weekly
housekeeping allowance negated the finding of desertion. The mental element of desertion is more
problematic, though, as it requires proof of an intention to permanently end
the marriage.
The real novelty of the 1973 Act is arguably the fourth ‘fact’ of
living apart, which is the best justification of the claim that the law is
based on ‘irretrievable breakdown’; ‘These provisions were conceptually
revolutionary’ (Cretney, 2000: 58). The difficulty, however, is that this element
may have a mental or a physical component concerning any community of life
between the couple. As was held in Mouncer v Mouncer
[1972], it may not be established where the couple share the same living room
or eat at the same table, notwithstanding that they may do this for the sake of
the children.
In the case of living apart for five years, the courts may refuse to issue a decree if divorce would produce ‘grave financial or other hardship to the respondent’, even if the marriage has irretrievably broken down, and secondly, if ‘it would in all the circumstances be wrong to dissolve the marriage’. Grave hardship was refused by the court in Archer v Archer [1999] where the wife claimed that if her husband pre-deceased her, the £18,000 maintenance order against him would come to an end, thereby causing her great financial hardship. As the wife, however, had her own investments amounting to £300,000 and other assets, her loss was not considered ‘grave’. The second requirement (that it would be wrong to dissolve the marriage) calls upon the court to engage in weighing the benefits from divorce against its hardships, but a decree is almost invariably granted.
At this stage, one should note that in 1971, nearly 30,000 petitions
were founded on the five year ‘living apart’ fact (Cretney,
2000: 64). The majority of petitions,
however, were based on ‘adultery’ or ‘behaviour’, which inevitably increase the
pain and hostility caused in divorce procedures, for parents and children
alike. Interestingly, wives have
virtually monopolized the ground ‘behaviour’ from its introduction in 1937 in
the form of ‘cruelty’ (Chester and Streather, 1972:
706; Davies and Murch, 1988). Such widespread use of ‘fault’ grounds may,
however, act against the interests of the child (Eekelaar
and Clive, 1978: para. 1.3).
Despite the presence of the above ‘fault’ facts, the Law Commission
published a report in 1990 The Ground for Divorce, concluding that the
irretrievable breakdown ground should remain in place, as the real problem was
not the ground itself but the processes by which breakdown was established (Cretney, 2000: 65).
This ground may be established, however, only after the expiry of one
year of reflection of the consequences of divorce and of any possibility of
reconciliation (Law Commission, 1990: para. 3.26) so
as to meet the child’s welfare. The
Commission also noted that fault is no longer realistic in divorce as ‘The law
cannot accurately allocate moral blameworthiness, for there are always two
sides to every marital history…’ (ibid, para. 3.41).
Currently, under the Family Law Act 1996 which has not been
implemented, fault in divorce has been abandoned and mediation has not been
introduced (discussed in detail in section VI) despite the pronouncements that
couples need a better understanding of the effects of divorce on children (LCD,
1995).
The reason perhaps is that when this Act was introduced, the old conflict with the Church remerged in the 1990s, albeit with the pro-family right as advocate, indicating that family law is ‘a process of negotiated morality’ (Smart, 2000: 376).
ii)
In
Yet, like
The persistence of a fault-oriented system in the British and
Cypriot jurisdictions demonstrates the increasing influence of the Church on
both systems. On the other hand, the Family Courts in
Hence, much uncertainty and ambiguity is embedded in the Cypriot
Constitution. On the one hand, it
endorses the requirement of guilt by either or both parties and on the other,
this requirement is in fact taken over by the ground of irretrievable marital
breakdown (Nicolaou, 1996: 132). The present state of the law is very
confusing for judges and lawyers alike (Serghides,
Interview, 22/12/2004). In fact, the
continuing presence of the fault grounds introduced by the Church is the
product of a vain, one-sided compromise by the Legislature to please the
Church, which still insists to contravene the provisions of the Constitution
and act ultra vires, by exercising an illegal jurisdiction in parallel to the
jurisdictions of the lawful Family Courts, which is striking.
One should also note that in 1988, the Constitutional amendment of
A. 111 has stipulated that the only courts responsible over family matters and
the grounds of divorce in
The above decision has been favourably received by judges, who
insist that having a single court jurisdiction in the area of family law is
conducive to legal certainty and coherence in the development of the law (Serghides, 2004: 77).
Yet, if the parties do not get a divorce from the Church, it will refuse
to allow them to remarry by conducting a religious ceremony. In this respect, persons wanting to remarry
in
Further, contrasted to
Attention will now be paid to some of the case-law regarding the ground of irretrievable breakdown, which is the main ground of divorce.
In Loucaidou v Petropoulou [2000], however, the wife failed in her claim
of irretrievable breakdown brought about by the husband as she had unilaterally
withdrawn sums from a joint account and had left the family home without good
cause. Application for dissolution of
marriage on the ground of breakdown was also rejected in Savvides
v Savvidou [1997], where neither of the spouses’
testimony was convincing enough to justify termination.
Preliminary Concluding Remarks in relation
to the Grounds of Divorce in
V) Transfer and Division of Property and Income post-Divorce
Focus will now shift to the financial consequences of
divorce and particularly the principles of distribution of assets, the duty of
financial maintenance and contributions to increase of income in
i) The English Jurisdiction
English family law has demonstrated a lack of any clear principles by which to settle the transfer of property between the couple; ‘…The law has failed to set out any clear model upon which the courts can base their approach…’ [in this area] (Eekelaar, 1991: 76). Indeed, ‘English legal thought is essentially an empirical art’ given ‘the tendency to draw conclusions from individual case to individual case…’ (Weber, 1978: 890-891; Eekelaar, 1982: 420).
Under the Matrimonial Causes Act 1973, the court can transfer property between the divorcing spouses and their children ‘so as to do broaden justice between the spouses and thereby reflect their real contributions to the welfare of the family’ (Cretney, 1999: 297). This has been noted in the case of Wachtel v Wachtel [1973], where Lord Denning seemed to be implying principles of an equitable sharing.
Firstly, the courts may make a ‘Property Adjustment Order’, which may take the form of a direct order to transfer or settle property for the benefit of the other spouse, concerning either ownership or enjoyment of property. Such an order could also vary or extinguish interests under marriage settlements. A ‘Transfer of Property Order’, stipulated under s. 21(2)(a) of the MCA 1973, enables the court to order that specified property, such as the matrimonial home, be transferred to the other spouse or for the benefit of a child of the family. Alternatively, the courts may settle property for the benefit of the other spouse (‘Settlement of Property Order’) under s. 21(2)(b) of the 1973 Act. The court may also vary or extinguish interests under marriage settlements under s. 21(2)(c).
Equally important are ‘Financial Provision Orders’ (orders for regular periodical payments out of income or lump sums of capital) which originate in the Matrimonial Proceedings and Property Act 1970. The traditional way of providing such support is through periodical payments of income which may now be ordered by standing order or direct debit, as stipulated under the Maintenance Enforcement Act 1991 (Cretney, 2000: 86). Secured periodical payment orders are, on the other hand, quite rare.
Finally, the courts also have power to order ‘Pension Sharing Orders’ which constitute a savings medium with very valuable tax benefits, being immune from taxation. Such pensions produced increasing inequalities, though, for women who did not work or worked part-time only, given their limited earning power (Cretney, 2000: 87)
As presaged in the introduction, the courts are given a wide array of discretion to deal with property distribution following divorce within the context of a strong ‘judicial creativity’ (Cretney, 1999: 286; Eekelaar, 1984: 593). One may question, however, whether judicial discretion to adjust property between the divorcing parties is the best solution as inequality and uncertainty may result, given the judges’ strong conservative culture (Burgoyne et al: 1987).
On the other hand, certain principles provide guidance to the courts. For instance, the longer the duration of the marriage, the bigger the share of the wife. Yet, the short duration of marriage in C v C [1997], namely nine months, placed no bar to a lump sum of £200,000 and a high annual support income to the wife, being married to a very wealthy man. Another informal guideline is that if the wife has maintained the home, she is entitled to a third. More obviously, where the property is jointly owned, it is to be divided in half between the couple. As for the matrimonial home, the aim is usually to keep the children in the home, as will be analysed in a separate section below.
In appears, though, that the 1973 divorce reform has not been systematic and has not been placed within the wider context of tax or social security laws, despite the importance of the Wachtel decision.
The ‘Minimal Loss’ Principle
Traditionally, judicial discretion was granted to preserve the
parties’ standard of living (Cretney, 1999:
288). This meant that the wife ought to
be placed in the position she would have been in had the marriage not broken
down - famously labelled as the ‘minimal loss principle’. The wife would obtain on divorce one third of
the couple’s joint incomes, notably in ‘big money’ cases, so as to meet her
‘reasonable requirements’. Hence, in
More specifically, under the 1973 Act, the courts were obliged to accord priority to the welfare of any minor under s. 25(1) and to have regard to certain ‘specified matters’ under s. 25(2). This legislation clearly sought to promote equality between the sexes, and on many occasions, increased financial support was given to the wife, in order to provide best for the child. One may argue, though, that the principle of ‘child welfare’ merely acted as a disguise to promote the political consideration of sympathy towards the financially helpless wife and the aim of sex equality, in light of the gap between the spouses’ earning capacity. For instance, in C v C (Financial Relief: Short Marriage) [1997], the court granted the wife a substantial award, notwithstanding the very short duration of the marriage, so as to promote the best interests of the spouses’ 4-year old invalid child.
Annual reasonable requirements of the spouses would be considered, however, in a rather problematic fashion, as judges considered the age of the spouse, then calculated on an actuarial basis her prospect of life and capsulated a sum to reflect those calculations. Such calculations were therefore fairly calculations. As a result, following a recommendation by the Law Commission, section 25 of the Matrimonial Proceedings and Property Act 1970 Act was abolished under the 1984 Matrimonial and Family Proceedings Act, introducing the principle of self-sufficiency.
The ‘Clean Break’ Principle and its Implications
Along with the focus on child welfare, which will be analysed in due course, the strong driving force behind the 1984 Act has been the principle of ‘clean break’, which frees the husband from any financial duties towards the former spouse (Lord Scarman, 1979: 608). This has been tied with three elements - self-determination, self-sufficiency and finality (Eekelaar, 2000: 413) and supported that financial provisions imposed on the divorced husband would produce financial strain, hence inhibiting his ability to remarry. As the CA held in Burgess v Burgess [1996], no fixed principle of equal division would inform the allocation of assets, even when acquired by the parties’ joint efforts. The focus is essentially placed on fairness - not equality of outcome - as also stressed by the Government’s Consultation Paper Supporting Families.
Linked to section II of the thesis, a question raised is whether ‘clean break’ reinforces marriage. One may argue that it might deter wives from divorce, by depriving them of financial security during marriage. On the other hand, the unequal partnership of marriage based on dependency implies that the dissolution of the marital bond unaccompanied by financial adjustment would be largely unfair for the wife. Although this rationale may coincide with the policies of Mrs Thatcher’s Government, it arguably contradict notions of the traditional family and the importance of child welfare (Douglas, 1990: 415).
Further, the lack of any empirical research by the Law Commission produced a law that is largely out of touch with the economic reality of women and therefore unjust. It was a largely pragmatic law, designed ‘to make the best’ of the circumstances (Eekelaar, 2000: 410). Perhaps the Law Commission was trapped in a deeply conservative society which compelled it to approach reform from a technical perspective.
Yet, continuing spouse support after divorce is necessary: ‘…If marriage were a genuinely economically egalitarian institution – with both parties sharing equally the economic burden, child care, household tasks…there would be little scope for continuing maintenance after divorce for either spouse. Marriages are not in fact conducted in this manner…’ (Levin, 1985: 192). Maintenance should therefore only be abolished following certain material employment preconditions (O’Donovan, 1982: 433). One may recall that the continuing obligation of maintenance after divorce may be traced back to the Christian ideal of marriage as a union for life under which man and woman were one flesh (Gray, 1977: 284; Finer and MacGregor, 1974: Vol. 2, Appendix 5, 85); however, following the demise of such traditional perceptions, the traditional concept of maintenance has received severe attack. Furthermore, the image of ‘a dependent woman’ is arguably unattractive and may contradict feminist ideas of sex equality. Yet, such equality is hard to achieve once one examines the social conditions that women face, analysed below.
One should note, though, that the
court was not to apply the ‘clean break’ principle regardless of all other
considerations (Clutton v Clutton [1991]) but needs to consider a number of
factors; whether it is just and reasonable to terminate the spouses’ financial
obligations (s. 25A(1) of the 1973 Act); any potential increase in the spouses’
earning capacity which might make it reasonable for a party in the marriage to
expect to acquire (s. 25(2)(a)); and whether it should specify a term for any
periodical payments order (s. 25A(2)) to enable the spouse (usually the wife)
‘to adjust without undue hardship to the termination of his or her financial
dependence on the other party’. The
court could also direct that no application be made to extend the specified
term order (s. 28(1A)) and finally, it may dismiss a claim for periodical
payments (s. 25A(3)) so as to achieve complete
finality of any financial obligations between the former spouses. Most importantly,
the ‘clean break’ rule did not apply where there were children involved,
following the focus on child welfare in the 1980s (Maclean, 1994: 511),
analysed in section VI of the thesis.
Hence, divorce did not really
terminate the marital relationship but simply readjusts it (Symes,
1985: 52) and the husband still had an obligation to maintain the wife in
periodical payments.
Distribution
of Business Assets and Future Earnings
Regard will now be paid to the distribution of business assets and future earnings between the couple.
In the case of White v White [2000], Lord Nicholls, delivering the leading judgment, stressed that ‘…A judge should always be well advised to check his tentative views against the yardstick of equality of division…As a general guide, equality should be departed from only if…there is good reason for doing so’. Yet, he added that ‘This is not to introduce a presumption of equal division under another disguise’. Equality was, therefore, not established as a starting point for judges – it was merely a ‘yardstick’.
The above authority has been subject to considerable debate. In 2001, Thorpe LJ held in Cowan v Cowan [2001] that ‘The decision in White clearly does not introduce a rule of equality…Fairness is the rule…It would seem to me undesirable for judges to be drawn into too much specificity…’. . Yet, no clear definition of ‘fairness’ exists, as it may mean different things to different judges and may be open to manipulation, tilting the balance either in favour of the wife or the husband and leading to uncertainty.
Equality has also been explicitly rejected in cases such as N v N [2001], S v S [2001] and L v L [2002]. For instance, in N v N, Coleridge J held that ‘…Equality could not be accurately achieved between the parties. The redistribution of wealth had to be
approached sensitively…A strictly equal division could not be undertaken…’. Similarly, Connell J in L v L commended the hard work and ‘innovative visions’ of the husband businessman which did not justify an equal distribution of assets to the wife. Equally important is the tendency of the courts not to award wives a share in the husband’s business, over and above her ‘reasonable requirements’, where she does what ‘a good wife does’, by way of moral support, as stressed by Lord Denning in Trippas v Trippas [1973]. Noteworthy is also the case of Cordle v Cordle [2002] where Thorpe LJ held that ‘…There is no rule in White v White that District Judges must produce equality of outcome unless there are good reasons to justify departure…’. This implies that the only duty of district judges is to consider the criteria under s. 25 to establish a fair outcome.
On the other hand, in H-J v H-J [2001], the wife received almost 50% of the matrimonial assets. As Coleridge J stated, it would be unjust to divide ample assets on a merit-based analysis of the parties’ respective contributions, departing from his decision in N v N the same year. Further, in Lambert v Lambert [2003], the wife was awarded 50% of the matrimonial assets, as held by Lord Justice Thorpe, marking a U-turn from his previous ruling in Cowan v Cowan just two years earlier. This U-turn may be attributed to the pressure exercised from the European Convention of Human Rights that all member-states should adopt principles of equality between the spouses, both during marriage and upon divorce. Another potential reason is that the extensive judicial discretion and the open-ended nature of the concept of ‘fairness’ have led to increased litigation and extremely high costs for the parties, thus causing the system disrepute. For instance, in Piglowski v Piglowska, the costs of litigation exceeded the value of matrimonial assets.
Recently, more radical developments have occurred in the area of division of the husband’s future earnings, a question addressed in the joint appeals of McFarlane v McFarlane and Parlour v Parlour [2004]. As Thorpe LJ held, ‘If the decision in White v White [2001] introduces the yardstick of equality for measuring a fair division of capital, why should the same yardstick not be applied as the measure for the division of income?’ (District Judge Roger Bird, 2004:1).
The CA was presented the question of the principles that should govern an award of periodical payments during joint lives or until remarriage, where the net income of the payer significantly exceeds what both parties need to meet their appropriate standard of living. Thorpe LJ concluded that ‘It was discriminatory and therefore wrong in principle for the earner to have sole control of the surplus through the years of accumulation. The preferred mechanism by which the surplus is to be divided must be periodical payments’. It was also stated that where clean break is impracticable, the court has a statutory duty to consider the possibility of the surplus of future income, particularly where such surplus is certain and substantial. If, on the other hand, the surplus is short, a clean break is the probable solution. In such a case, the payee would have to invest the surplus sensibly.
The above cases were pretty exceptional, though, as they concerned parties with very large incomes and insufficient capital to provide a ‘clean break’. Further, in both cases, the wives had no immediate prospect of improving their earning capacity. These authorities remain, however, important, since many high-earning professional couples might be placed in a similar financial situation (Thorpe LJ: 2004).
Further, judges seem to treat the question of ‘equality’ as an embarrassing issue as it ‘puts people off’ (Hare: 1993); it would also undermine the authority of senior judges to deal with the couple’s finances (Thorpe, 1998: 155). Does the law do justice to the financially dependent wife though?
The Element of Conduct
Interestingly, conduct may be considered by the courts
in assessing financial provision. As
Lord Denning held in Wachtel v Wachtel, a residue of cases may be found where conduct
of either parties was ‘obvious and gross’ and here, it would contradict a sense
of justice to order the other party to support such a person.
On the other hand, in Duxbury v Duxbury [1987],
despite the husband’s claim that the possibility of the wife’s remarriage was a
sufficient ground for a smaller lump sum order coupled with periodical
payments, the CA sought to satisfy the wife’s ‘reasonable needs’ and conduct
was held to be only relevant where it would be inequitable to disregard it.
‘Conduct’ has also been considered in the authority of
K v K [1988] where a wife who encouraged her chronically depressed
husband to commit suicide received a reduced share in the matrimonial
property. Further, in Clark v Clark
[1999], the CA concluded that a wife, who had compelled her 80-year old
millionaire husband to live in a caravan in the garden while she was living in
the mansion with her lover, had a lesser entitlement to the husband’s
property. Conduct may be considered both
during marriage and during the matrimonial proceedings themselves, as held in B
v B [2002].
Whether the consideration of ‘conduct’ is desirable or
not may be subject to much debate. Bainham comments that ‘…Allowing fault to influence
outcomes may dissociate property allocation and alimony awards from the more
important criterion of need and may lead to unpredictability’ (Bainham, 2001: 226).
In my opinion, the retention of fault attaches a moral dimension to the
financial provisions of divorce and reflects the previous tradition of
matrimonial offences. Other commentators
believe that fault is central to the notion of marriage as a commitment (Rowthorn, 1999: 686).
Further, no-fault divorce would possibly lead to an increase of divorce
rates by removing the deterrent element against marital misconduct and produce
unfair results in property distribution (Ellmann,
1997: 219).
The Matrimonial Home and the Wider Interests of the Child
S.
25(1) of the Matrimonial Proceedings Family Act 1984 states that the court must
give first consideration ‘to the welfare…of any child of the family who has not
attained the age of 18’. In this respect,
the matrimonial home is always treated as a home for the children and so, the
court often orders a transfer of the title to the family house to the primary
care-taker.
Under the above orders, the woman
carer would relinquish any maintenance claim for herself
and simply reserve the right to purely nominal order for child
maintenance. This way, the wife was no
better off, whereas the child greatly benefited from staying at the family
home. This would be achieved by the settlement of the matrimonial property on
trust for sale entitling the mother and children to occupy the house until the
youngest child leaves school. After
that, the house would be sold and the proceeds distributed among the couple. In Martin v Martin [1978], for
instance, the wife received 50% of the proceeds, whereas in Clutton
v Clutton [1991] the wife got a third.
One may argue that through the
housing provisions for children, the courts may be seen as drawing a balance
between the interests of the spouses, given that, although, the wife is allowed
to occupy the home, once she remarries, the property is sold, hence
safeguarding the interests of the husband.
It is questionable, though, whether English divorce law pays adequate attention to child welfare. In order to strengthen the interests of the child, perhaps ‘…Equity could find at least an interim solution to the family home problem, based clearly on children’s needs and without doing violence to its own [paternalistic] heritage’ (Sawyer, 2004: 32).
Property Distribution Provisions and their Link to Social Conditions - Inequality between the Sexes
Gray argues that ‘The law
regulating the spouses’ property relations [on divorce] is fundamentally an
index of social relations between the sexes…[it
demonstrates] the prevailing ideology of marriage, the cultural definition of
marital roles…and the role of the state vis-à-vis the family’ (Gray,
1977: 1). Indeed, where there is an
individualistic system of property entitlement, any assertion that the
appropriate family structure is one parent out breadwinning and the other at
home bringing up the children is bound to raise questions of potential trouble if there
is also widespread divorce (Sawyer, 2004: 33).
Arguably, the state should be oriented towards
protecting the home-carer wife. Although
the participation of women in
On the other hand, the above
perceived injustice has arguably been mitigated through the use of the ‘child
welfare’ principle which simultaneously accommodates for the interests of the
mother through the transfer of the matrimonial home to the mother and income
distribution in big money cases, as illustrated above. Hence,
although ‘equality’ has been explicitly rejected by judges, women do often
receive adequate maintenance by the husband through the notion of ‘fairness’.
ii) Distribution
of Property upon Divorce under Cypriot Family Law
In
Claims of Contributions to Increase of the
other Spouse’s Property
Any claims of contribution to property of the other spouse fall
under Articles 13-21 of the 1991 Law. An
examination of these articles is vital to the assessment of the character of
A.14 of the law stipulates that upon divorce, where the property of the one spouse has increased during marriage and the other spouse has contributed to that increase in any way, he or she is entitled to demand from the court the part of the increase that is attributed to his or her own contribution, usually being 1/3 of the total property (except if proof to the contrary is adduced, as stated under A.14(2)). In Cypriot family law, this rule supplements the principle of autonomy of a person over his property, as clear from the provisions of the Greek Civil Code and has arguably borrowed from the principles of unjust enrichment, as s.904 of the Greek Civil Code states. Hence, whereas the general rule presumed under Cypriot family law is private autonomy over one’s property, that rule is supplemented by the exception of the claim of contribution of the other party (financial or otherwise) to the increase of that party’s property (A 13 of 1991 Act). A. 14(3) adds that any donations, gifts or assets inherited by either spouse are not to be distributed among the couple.
It is also interesting to note that the 1998 law added to the previous versions an extract, now contained in the 1999 law, stipulating that the court has the power to issue an order requiring a spouse to make an accurate statement before the court of the status of all the assets in which he had any direct or indirect interest at the time of the dissolution of the marriage. This point bears a similar analogy with the English position which requires an accurate disclosure of the assets of each spouse. The amended A 14B adds that any persons giving false or inaccurate information to the court as regards his assets will be guilty of a criminal offence and may be imposed a maximum prison sentence of 2 years or a maximum fine of £2,000, or both, as is also the case with Britain. Further, an additional power is afforded to the court under A. 14 C enabling it to issue an order to refrain a spouse from alienating his property or treating it in any adversary way to the determinant of the applicant’s interests.
An important element of this law is that the wife’s ‘contribution’ to the increase of the husband’s property also includes the caring of children and responsibility for the family home (Serghides, 2004: 76). This, no doubt, strengthens the principle of non-discrimination between the sexes and protects the home-carer or part-time wife. This provision has also been endorsed in the English system which covers not just financial but also any other contribution of the wife to the increase of the husband’s property.
The Element of Conduct
Under A. 16, any gifts of assets given by one spouse to the other during the marriage will be considered by the Family Court. A spouse, however, may be absolved from the duty to transfer either property or income to the other spouse under the following circumstances: infliction of grievous bodily harm - A 17(c); desertion with no good cause by the applicant of the other spouse - A 17(d); and cruel or immoral treatment of the spouse or children - A 17(e). This law implies that the claim for participation in the property acquired by the other spouse is fault-oriented (Panayiotidou and Hadjiyiorki, 2000: 670). This certainly resembles Lord Denning’s rule in Wachtel v Wachtel analysed above, which considers the reasonableness of the conduct of spouses in determining financial support.
Movable Assets
Concerning movable assets, the individualistic character of the law is indicated in A.17 (2) of the 23/90 Law, which states that every spouse is entitled to the assets that belong to him or her. As Papazisis states, this entitles the spouse responsible for the interruption of marital life to receive the movables belonging to him and to request the use of the movables that are needed to start his new life (Papazisis, 1992: 76). The law does state, though, that each spouse must give the other any house objects that are proved to be of necessary value to him or her. On the other hand, any movable objects, such as cars, which belonged to both spouses and were of joint use to them, may be distributed by the court between the couple in such a way that would reflect their separate needs.
The Matrimonial Home and the Interests of the Child
Another important stipulation of Law 23/90 is A. 17(1) which grants the court power to transfer to either spouse title to the matrimonial home, regardless of any pre-existing rights of ownership. The definition of this movable asset is ‘the house which formed the main residence for the couple’. To this end, the court is called upon to consider the special circumstances and needs of each spouse (professional, financial or otherwise) and of course, the welfare of the children, analysed below. In the majority of cases, though, the house goes to the wife when there are children involved.
The difference with the English jurisdiction, however, is that no
trust for sale is ordered, but the house usually remains the wife’s property
where she may reside with her children for life, and not just until the child
leaves school, as is the case with
Financial Maintenance
With regards to maintenance, Part II, Article 3 of the 1991 Law of Regulation of the ‘Property Relations Between Spouses’ states that the spouses have a mutual responsibility to provide financial support to one another, depending on their resources. This means that the financially weaker party is to be supported, hence contributing to the protection of equality between the sexes. This is clearly driven by fairness considerations for the financially weaker party, invariably the ex-wife.
More specifically, A 4(1) states that in case of divorce, the court may, upon the application of one of the spouses, order the other to pay for the applicant’s maintenance. A 5 then goes on to explain the circumstances under which a spouse may ask from the court to issue such an order. These include the age or physical state of the financially weaker spouse that may not enable him or her to continue work so as to make his or her living, and the responsibility of a minor or another dependent person. Article 6 then goes on to state that despite what the previous articles specify, a spouse may be exempted from such maintenance duty for special reasons, one of them being the very short duration period of a marriage, which is also supported under the English jurisdiction. As mentioned above, this is also one of the informal guidelines that English courts consider in distributing marital property on divorce. Interestingly, however, the Cypriot family court ruled in the case of Menelaou v Menelaou [1993] (unreported) that the period of duration of 20 months of a marriage was not considered short enough to justify the party to be exempted from the duty of maintenance towards his spouse. This again reinforces the aim of non-discrimination between the spouses which is deeply embedded in Cypriot family law and reminds us of the English case of C v C where the short duration of marriage did not refrain the courts from providing substantial financial support to the wife. Further, Article 7 adds that financial maintenance depends on the other party’s needs and circumstances, and under A. 9 must be given to the spouse every month.
The Social Perspective Attached to Financial Provisions
In
Preliminary Concluding Remarks on the
Financial Provisions of Divorce in
One may conclude so far that the extensive judicial discretion in
settling marital property post-divorce in
Both systems are nonetheless fairly individualistic as they do not
endorse formal ‘equality’ with respect to property distribution. In
Both systems do, however, protect the weaker financial party through
support, although the Cypriot model is more equity-oriented in big-money
cases. The 1999 Law is itself strongly
sympathetic to the spouse’s financial interests. This may be explained as an attempt to fill
in the inequalities operating against women in the Cypriot society at large, as
also indicated through the frequent allocation of the matrimonial home to the
mother, provided that the husband has the economic resources to find another
accommodation or owns another property asset.
In
Further, as Annex 2 (p.76) illustrates, it is the wives in
VI) Mediation in Family Disputes – Objectives and Developments in Britain and Cyprus
i) Mediation in
For a hundred years following the Matrimonial Causes Act of 1857, the management of divorce lay firmly in the hands of lawyers (Roberts, 1998: 714). Ideas of reconciliation and the ‘welfare of the child’ were somewhere lost; ‘The tendency in England and Wales is to use a solicitor’s office as the automatic first port of call without first becoming aware of…the range of options which are available to separating and divorcing couples’ (Looking to the Future: Mediation and the Grounds for Divorce, 1995: para. 7.3). Yet, alternative routes of resolution are perceived to have a number of advantages for the parties, as also implicitly acknowledged under the Children Act 1989. Its ‘no Order’ principle under s. 29 implies that proceedings do not automatically result in adjudication (Wilson, 1999: 9; Roberts, 2000: 37).
The aim is ‘to replace the present divorce process founded on arm’s length interactions among lawyers, by one built-around bilateral negotiation’ (Roberts, 1998: 715) and to ensure that divorce is made available ‘by the passing of a period of time’ (Looking to the Future, 1995: para. 2.34) to enable the parties to determine what is right for themselves and their children. Parties are also required to attend an ‘information session’ where child psychologists, mediators and lawyers participate (ibid, para. 7.17), whereas any decisions concerning the children or finance and property relations should be reached during a twelve month period reserved ‘for reflection and consideration’ (ibid: para. 4.11).
Mediation aims at a peaceful resolution of disputes, giving the parties autonomy to determine their own affairs and viewing parents as the most appropriate judges of the interests of their family. It also recognizes that individuals can engage in rational decisions (Forster, 1982: 3). The informality of the process transfers the debate to a non-legal sphere and focuses on relationships rather than technical points (Roberts, 1988: 538).
Despite its perceived benefits and the demands for comprehensive
mediation (Hoggett, 1992: 219; Parkinson, 1986: 193),
especially for the sake of children (Parkinson, 1986: 5), mediation has
unfortunately not been established under the Family Law Act 1996, although
community-based mediation schemes have been created across the
ii) Developments in
The benefits of mediation have also been explicitly acknowledged by
the President of the Family Court in
In
On the other hand, mediation may be hard to establish in
VII) Parental
Responsibility in England
and Cyprus
Focus will now shift to the provisions of parental responsibility following divorce. As Dame Brenda Hale asserts, family law is now less preoccupied with regulating spousal relationships and focuses more on the welfare of children (Hale, 1998: 125; BIICL, 1966: 4), as also witnessed through the encouragement of mediation above.
i) Parental Responsibility under English Family Law
In this area, one notes a move away from paternalism towards family autonomy as it is parents that are responsible for determining their child’s best interests. This is evidenced through s. 1(5) of the Children Act 1989 which refrains a court from making an order ‘…unless it considers that doing so would be better for the child…’; ‘We all start with the presumption that the best place for a child is with his or her family and that the state should intervene only if that relationship goes wrong’ (Vaz, Hansard, HoC, 1989: Col. 284)
On the other hand, courts are vested with a high
degree of discretion in determining where the child should live, whether there
should be continued contact with a parent and the frequency of that contact (Cretney, 2000: 306).
In a liberal democracy,
legislation which affects children must be ‘morally justifiable’ (Sclater and Piper, 2001: 421). Yet, child welfare may serve a particular
agenda, namely to promote family autonomy, which fits well within
On the other hand, non-interference by the state may
not be justified given the high rates of divorce involving small children (see
Annex 5, p. 79). Bainham even suggests that
the Children Act 1989 has not erased such public interest but has merely
redefined it (Bainham,
1990, 210).
Custody
Following divorce, it is the mother who usually
obtains custody over the children as, quoting Stampe
LJ in M v M [1978], this is what nature ordains (Luepnitz,
1982: 8). In Re W [1999], the CA thus overruled the previous court’s
decision that the child should remain with the father because the mother and
her new partner had frequent communal bathing which might harm the child. Traditionally, this natural bond could be
breached upon the mother’s adultery (Bainham, 2001:
231) although this usually required proof of desertion. Yet, in J v C [1970], the wife of an
Anglican clergyman who had an affair with the Church youth leader did not lose
custody of her young children.
Interestingly, the maternal bond may also be breached if the mother
changes sexual orientation (Smart, 1984:124).
Further, an important factor influencing the decision of where the child
should live is which parent will be best able to encourage a continuing
relationship between the child and the absent parent (Pryor and Seymour, 1996:
129).
On the other hand, fathers have
recently claimed increased rights of parental care over their children, which
feminists have perceived as a disguised attempt of control. Yet, the Children Act 1989 does not endorse
‘dual parenting’, nor any form of ‘joint custody’ (HO: 2004). Such a regime might well benefit the child,
who would have contact with both parents but, conversely, it might produce
increased parental conflicts.
Further, the child is to be given
a voice to be heard under s. 1(3) of the 1989 Act which encourages the courts
to consider the child’s wishes and feelings; the child’s needs; the likely effect
of any change of circumstances; age, sex, and background; any harm or risk of
harm suffered; the capability of the parents; and finally, the range of powers
available to the court.
Yet, the child’s views only reach
the court indirectly, through a welfare officer’s report. For instance, in Re M [1995], the
views of a 12 year-old girl who wanted to live with her father were only
considered through the officer’s report.
Similarly, in Re C [1993], the views of a 13-year old girl were
discarded as she was deemed ‘too young of bearing the burden of decisions about
her own future…’.
Further, although Sir Bingham stated in Re S [1993] that ‘A
child’s wishes are not to be discounted or dismissed simply because he is a
child’, he admitted that children are often vulnerable and so, their views
should be considered with caution. As Dunn LJ held in Adams v
Contact Orders
Contact orders also occupy a big part of family disputes, either regarding venue or the quality of the contact. Arguably, no child should be deprived of access with a parent unless the court is wholly convinced that this would be in the child’s best interests. As Wrangham J stated in M v M (Child: Access), contact with both parents is ‘a basic right of the child’. The residential parent also has a duty to send photographs and school reports of the child to the non-resident parent.
The issue of contact has, however, unfortunately led many parents to adopt a hostile attitude towards such orders, and to this, Sir Thomas Bingham has replied that ‘Neither parent should be encouraged…to think that…the more uncooperative they are, they more likely they are to get their own way’ (Re O, 1995).
‘Fathers for Justice’ (a civil rights movement) has complained about the unwillingness of the courts to penalize the uncooperative mother in contact disputes, leading to a number of proposals that may be implemented in a Family Law Bill next year. These include mediation and medium penalties for the hostile mother, ranging from fines, community service and anger management sessions.
On the other hand, decisions about contact must be child-centred and ‘contact can only be an issue where it has the potential for benefiting the child’ (Sturge and Glaser Report, 2000). It has therefore been questioned whether children should maintain contact with their violent non-residential parent, as this might violate their welfare, safeguarded under the European Convention of Human Rights and the UN Convention on the Rights of the Child. Domestic violence also constitutes a significant failure in parenting (Mr Justice Wall, 2000: 48). As studies have illustrated, abuse may impair a child’s development, stability and emotional well-being. Hence, in three appeals (Re L, Re V and Re H), the courts denied the violent fathers a right of contact with their children. However, the current presumption of contact is hard to displace and actual proof of violence is usually required, although the courts are now obliged to investigate into allegations of violence. This may be attributed to the lack of unanimous opinion by psychiatrics as to the damage that such contact could produce to children (Mr Justice Wall, 2000: 51).
Child Support
Concerning child support, three
different models of assessment have been developed through time by different
Governments. Perhaps the most controversial has been the model adopted by Mrs
Thatcher’s Government, which led to the introduction of the White Paper
‘Children Come First’ 1990, followed by the enactment of the Child Support Act
1991; this was based on ‘a rejection of the idea that a parent can walk away
from a child’ (Maclean, 1994: 519).
Hence, under s. 2, the non-resident parent was liable to pay such
periodical payments as determined by the Act.
S. 8(3) of the Act established a Child Support Agency (CSA) which was
given full powers to determine and enforce maintenance orders, of which the
assessment was based on a formula of Byzantine complexity, following the
Australian example. The increased
criticism against the inefficient operation of the Agency, the heavy economic
strain placed on poor fathers pushed below subsidence level and the lack of any
real financial improvement of lone-parent families led to the collapse of this
model.
Under Tony Blair’s Labour Government, an alternative model was
introduced which led to the introduction of the Child Support, Pensions and
Social Security Act 2000. Although the
CSA was retained, the complex formula of child support was replaced with a
simple system of percentages - 15% for one child, 20% for 2 children and 25%
for 3 or more children – that were imposed on the father’s net income, from
which tax, pension contributions and national insurance were deducted. Contact with the absent parent would first be
made on the phone, followed by a required documentation of his income, which,
if inaccurate, would involve a penalty.
This model did not work, though, owing to problems with the software,
whereas fathers also ran the risk of being pushed below subsidence level.
ii) Divorce and
Children under
The focus on the interests of the child has also informed the legal
position in
A. 5 of the Law ‘The Relations between Parents and Children’ 1990
(216/1990) states that parental responsibility is a right and duty exercised by
both parents. A. 6(1) of the Act
further stipulates that every decision of the parents need to aim at the best
interests of the child, whereas A 6(3) states that the child ought to be
consulted for each decision concerning his or her interests, according to his
or her age and maturity. The welfare of
the child is essentially placed in the hands of the parents, and not the
courts, as is also the case with
It is interesting to note, though, that child welfare is arguably more precise than the respective English principle, under both case-law and legislation. For instance, in Antoniou v Harpa [2001], child welfare was held to include the physical, material, emotional, short-term or long-term interests of the child. In addition, the 1990 Act contains a number of guidelines as to how the best interests of the child might be served. A 7 states that where parents disagree as to the school to which the child should attend, they may apply to the court to make a declaration. Further, A 8 states that acts of a common or urgent character may be performed with the consent of one parent alone, such as an urgent surgical operation.
Custody
As in the case of
‘Custody’ of the child includes, under A 9 of the 1990 Act, ‘the upbringing, supervision, education and provision of residence to the child’. More specifically, the ‘upbringing’ of the child requires under A 9(2) contribution to the development of the child’s personality, free from any signs of gender bias.
As the court held in Iacovides v
Iacovidou [2000], the transfer of a child by his
mother abroad was against the child’s best interests and that parental
responsibility ought to be granted exclusively to the father, in view of the
mother’s determination to move to the
Similar to the British position, Cypriot family law stipulates that the child’s feelings need to be considered by the courts. These are not, however, the ultimate consideration, as stressed in Iacovidou v Iacovides above, given that children are often immature and their choice may have been unduly influenced by either parent.
Contact with the non-Resident Parent
Concerning the rights of the non-resident parent (usually the father), A. 17 of the Act entitles him to retain contact with the child, this being a basic right of both the father and the child; in the case of dispute, the father may apply to the court for an appropriate declaration. This right is also safeguarded under A. 15 of the Cyprus Constitution and may only be revoked where it is in the best interests of the child.
On the other hand, where the father is violent, the mother may apply
for a declaration by the courts that contact with the father is not in the
child’s best interests. If violence is indeed proved, the presumption of contact is fairly
easy to rebut, contrasted to the case of
Child Support
Attention
will now be paid to the duty of child support.
Although under A. 14 of the 1960 law (14/1960) only the father had the
duty to provide child support, the 1990 law (219/90) stipulates, under A. 13,
that both parents are to share this financial responsibility, according to each
parent’s financial resources. This, no
doubt, stresses the individualistic character of the law. In specific, if the father earns £800 per
month (A) and the mother earns £500 (B), and the costs of the child arise to
£400 (C), then the child support is assessed on the following basis:
a)
added income = 800 + 500 = 1300 (D)
b)
1300
400
800 X
800
x 400
X =
----------------- = £246
(father)
1300
c) 1300
400
500 X
500 X 400
X = -------------------- = £ 154 (mother)
1300
C x (A) or (B)
d) X = --------------------
D
Child support is generally
determined according to the needs of children, according to their specific
standard of living and the financial resources of the parents (A. 37(1)). This includes costs for the support,
well-being and education of the child (A. 37(2)). Interestingly, upon an
increase of either parent’s income, support might also increase using the
following simple formula:
father’s increase of
income = £200 (A)
mother’s increase of income
= £150 (B)
Common increase = £350 (C)
Increase in expenses = £150 (D)
ð eg. Increase of father’s
contribution A x B 200 x 250
------- = ----------------
C 350
Preliminary
Concluding Remarks on Parental Responsibility in
Although both the British and
Cypriot jurisdictions treat the interests of the child as of paramount
importance, they nonetheless do not fully consider the views of children,
especially when they are very young, triggering a policy of paternalism. This makes one wonder whether child welfare
is merely a powerful rhetoric to advance particular interests, namely
non-interference by the state. One may also comment that the principle of
‘child welfare’ is couched in fairly indeterminate terms in
Both systems favour family
autonomy as both parents are actively involved in making appropriate
arrangements for their children’s welfare (Law 216/1990 in Cyprus and Children
Act 1989 in the case of Britain). Given,
however, the high figures of minor children involved in divorce, especially in
With respect to contact
orders, it is an undisputed fact that the non-resident parent (usually the
father) has the right to have contact with his child, this applying to both
Finally,
with regard to child support, the British system is sharply contrasted with the
Cypriot model, the latter being court-based and not administrative-based as is
the case with England Cyprus than England
VIII) Conclusion
The present thesis has sought to compare the divorce law of
Probably the main source of difference between the two systems is
that English family law is part of a common law jurisdiction, whereas Cypriot
family law has followed the civil law system of
Stronger similarities are noticed between the two systems within the
context of parental responsibility which focuses on the child’s interests,
though not always awarding them sufficient weight, so as to protect them within
a spirit of paternalism. Family autonomy
has prevailed in both jurisdictions in this particular area, but the advantages
of this approach may be questioned. Yet,
the systems of child support are radically different in
In general, the development of divorce law in both systems has been
characterised by slow, incremental reform, owing perhaps to the strong presence
of religion, as has been particularly evidenced in the area of grounds of
divorce. In the case of
This comparative analysis has not attempted to demonstrate which of
the two divorce laws is ‘better’, nor has it sought to imply that the one model
should follow the other. That would be,
in any event, impossible, as family law (and, in particular, divorce law)
reflect a particular culture, political process and values. In
The internal solution arguably lies in reconciling history with
modernization. Family law is a dynamic
area that needs to accommodate social change and the public’s perceptions of
marriage, divorce and the care of children.
A convergence of family laws in
‘There are, indeed, in this…[area] of public policy, hard choices to be made’ (Cretney, 1999: 312).
Annexes
Annex 1:
Source: Council of
|
Year |
CY |
|
|
1965 |
0.2 |
0.7 |
|
1970 |
0.3 |
1.1 |
|
1975 |
0.2 |
2.3 |
|
1980 |
0.3 |
2.8 |
|
1985 |
0.5 |
3.1 |
|
1990 |
0.6 |
2.9 |
|
1995 |
1.2 |
2.9 |
|
2000 |
1.7 |
2.6 |
|
2001 |
1.7 |
2.6 |
|
Year |
CY |
|
|
1965 |
|
|
|
1970 |
|
0.16 |
|
1975 |
|
0.30 |
|
1980 |
0.04 |
0.38 |
|
1985 |
0.06 |
0.42 |
|
1990 |
0.07 |
0.42 |
|
1995 |
0.15 |
0.43 |
|
2000 |
0.21 |
|
|
2001 |
0.20 |
|
Annex 2 (evidence collected by different sources and composed in a table by myself)
Divorces by Duration of Marriage in the
|
Duration of Marriage |
1995 |
1996 |
1997 |
1998 |
1999 |
2000 |
2001 |
|
0-2 |
14,015 |
14,021 |
12,596 |
12,247 |
11,350 |
10,438 |
10,190 |
|
3 |
10,209 |
10,467 |
9,410 |
9,270 |
8,833 |
8,296 |
8,206 |
|
4 |
10, 283 |
10,436 |
9,761 |
9,619 |
9,124 |
8,740 |
8,591 |
|
5 |
10,447 |
10,042 |
9,326 |
9,180 |
8,958 |
8,506 |
8,632 |
|
5-9 |
44,403 |
44,609 |
41,260 |
40,239 |
39,676 |
38,206 |
39,079 |
|
10- 14 |
27,365 |
27,332 |
26,215 |
26,690 |
27,384 |
27,459 |
28,176 |
|
15- 19 |
18,943 |
19,321 |
18,027 |
17,934 |
18,072 |
17,870 |
18,603 |
|
20 > |
30,370 |
30,912 |
29,408 |
29,199 |
30,108 |
30,120 |
30,791 |
|
Total |
166,035 |
167,140 |
156,003 |
154,378 |
153,505 |
149,635 |
152,268 |
|
Mean Duration |
8,43 |
8,46 |
8,58 |
8,67 |
8,88 |
10,09 |
10,20 |
|
Median Duration |
12,11 |
12,17 |
12,30 |
12,35 |
12,61 |
12,81 |
12,90 |
Divorces by Duration of Marriage
in Cyprus
|
Duration of Marriage |
1995 |
1996 |
1997 |
1998 |
1999 |
2000 |
2001 |
|
<1 |
6 |
11 |
8 |
17 |
40 |
38 |
50 |
|
1 |
35 |
31 |
41 |
48 |
70 |
77 |
85 |
|
2 |
45 |
53 |
55 |
42 |
68 |
90 |
72 |
|
3 |
60 |
35 |
68 |
69 |
83 |
89 |
82 |
|
4 |
47 |
56 |
43 |
43 |
88 |
76 |
84 |
|
5 |
52 |
38 |
63 |
57 |
69 |
66 |
70 |
|
6 |
44 |
50 |
58 |
59 |
69 |
66 |
59 |
|
7 |
37 |
31 |
47 |
46 |
79 |
67 |
55 |
|
8 |
38 |
29 |
26 |
49 |
61 |
36 |
38 |
|
9 |
25 |
39 |
40 |
36 |
54 |
58 |
52 |
|
10-14 |
136 |
125 |
165 |
157 |
186 |
189 |
183 |
|
15-19 |
106 |
103 |
103 |
100 |
147 |
130 |
161 |
|
20> |
126 |
124 |
134 |
129 |
179 |
200 |
206 |
|
Total |
757 |
725 |
851 |
852 |
1193 |
1182 |
1197 |
|
Mean
Duration |
11,5 |
11,3 |
10,9 |
10,8 |
10,5 |
10,8 |
11,0 |
|
Median Duration |
9,0 |
8,0 |
9,0 |
8,0 |
8,0 |
7,0 |
9,0 |
Annex 3
Source: www.Statistics.gov.cy
Marriage and Divorce Rates in the Newly Acceded and
Prospective Candidates of the EU, between the years 1997 and 2001
|
' |
Crude
marriage rate per 1000 of population |
' |
' |
|
' |
Crude
divorce rate per 1000 of population |
' |
' |
' |
' |
|
' |
1997 |
1998 |
1999 |
2000 |
2001 |
1997 |
1998 |
1999 |
2000 |
2001 |
|
Bulgaria |
4.2 |
4.3 |
4.3 |
4.3 |
4.0p |
1.1 |
1.3 |
1.2 |
1.3 |
1.3 |
|
Czech Republic |
5.6 |
5.4 |
5.2 |
5.4 |
5.1p |
3.2 |
3.1 |
2.3 |
2.9 |
3.1 |
|
Estonia |
3.8 |
3.8 |
4.0 |
4.0 |
4.1 |
3.6 |
3.1 |
3.2 |
3.1 |
3.2 |
|
Cyprus |
11.8 |
10.8 |
12.1 |
12.9e |
13.9 |
1.6 |
1.1 |
1.6 |
1.6 |
1.6 |
|
Latvia |
3.9 |
3.9 |
3.9p |
3.9 |
3.9p |
2.5 |
2.5 |
2.5p |
2.6 |
2.4 |
|
Lithuania |
5.1 |
5.0 |
4.8 |
4.7p |
4.5p |
3.1 |
3.2 |
3.1 |
3.0 |
3.2 |
|
Hungary |
4.6 |
4.4 |
4.5 |
4.8 |
4.3p |
2.5 |
2.5 |
2.5 |
2.4 |
2.4 |
|
Malta* |
6.4 |
6.5 |
6.4 |
6.5 |
5.6p |
* |
* |
* |
* |
* |
|
Poland |
5.3 |
5.4 |
5.7 |
5.5 |
5.1 |
1.1 |
1.2 |
1.1 |
1.1 |
1.2 |
|
Romania |
6.5 |
6.5 |
6.2 |
6.1 |
5.8e |
1.5 |
1.8 |
1.5 |
1.4 |
1.4 |
|
Slovenia |
3.8 |
3.8 |
3.9 |
3.6 |
3.5p |
1.0 |
1.0 |
1.0 |
1.1 |
1.1 |
|
Slovakia |
5.2 |
5.1 |
5.1 |
4.8 |
4.4 |
1.7 |
1.7 |
1.8 |
1.7 |
1.8 |
|
Turkey |
8.3 |
7.7 |
7.4 |
7.1p |
: |
0.5 |
0.5 |
0.5 |
0.5 |
: |
|
EU15 |
5.1 |
5.0 |
5.1p |
5.1e |
4.8e |
1.8 |
1.8 |
1.8p |
1.9e |
1.9e |
Annex 4
British Source: 2003, Population Trends 117
Grounds of Divorce in UK in the year 2003
|
Adultery |
Behaviour |
Desertion |
Separation with 2 years consent |
Separation 5 years |
|||||
|
Husband |
Wife |
Husband |
Wife |
Husband |
Wife |
Husband |
Wife |
Husband |
Wife |
|
12,172 |
21,159 |
13,978 |
54,966 |
267 |
398 |
14,587 |
22,344 |
5,903 |
7,336 |
Cypriot Source: www.Statistics.gov.cy
Grounds of Divorce in
|
Irretrievable Breakdown |
Desertion |
Separation 5 years |
Other cause |
||||
|
Husband |
Wife |
Husband |
Wife |
Husband |
Wife |
Husband |
Wife |
|
607 |
502 |
7 |
3 |
0 |
0 |
1 |
0 |
Annex 5
Divorces by Number of Dependent Children in
|
Year |
Total divorces |
1 child |
2 children |
3 children |
4 children |
5 + children |
|
1991 |
304 |
81 |
69 |
11 |
1 |
0 |
|
1996 |
725 |
221 |
150 |
48 |
12 |
1 |
|
1999 |
1193 |
334 |
271 |
53 |
21 |
1 |
|
2000 |
1182 |
319 |
240 |
58 |
15 |
4 |
|
2001 |
1197 |
335 |
238 |
53 |
13 |
1 |
|
2002 |
1320 |
371 |
243 |
69 |
9 |
2 |
|
2003 |
1472 |
391 |
288 |
69 |
15 |
3 |
Divorces by Number of Dependent Children in the
|
Year |
Total Divorces |
1 child |
2 children |
3 children |
4 children |
5 + children |
|
1991 |
88,346 |
35,663 |
37,388 |
11,816 |
2775 |
704 |
|
1996 |
86,933 |
33,501 |
36,715 |
12,514 |
3288 |
915 |
|
1999 |
79,298 |
30,745 |
33,550 |
11,238 |
2953 |
812 |
|
2000 |
76,776 |
29,883 |
32,633 |
10,757 |
2759 |
744 |
|
2001 |
79,277 |
30,996 |
33,596 |
11,076 |
2803 |
806 |
|
2002 |
80,997 |
31,941 |
34,381 |
11,111 |
2750 |
814 |
|
2003 |
83,809 |
33,588 |
35,355 |
11,265 |
2821 |
780 |
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v Burgess [1996] 2 FLR 34
(CA)
·
C v
C [1970] AC 668
·
Clark
v Clark [1999] 2 FLR 498 (CA)
·
Cleary
v Cleary and Hutton [1974]
1 WLR 73 (CA)
·
Clutton v Clutton [1991] 1 ALL ER 340 (CA)
·
Cordle v Cordle [2002] 1 FLR 207 (CA)
·
Davis
v Davis [1967] P. 185 (CA)
·
Duxbury
v Duxbury [1987] 1 FLR 7
(CA)
·
Evans v Evans [1790] 1 Hag. Con 35
·
HJ- v H-J [2001] 1 FLR 415 (Fam D)
·
K v K [1988] 1 FR 469
·
Le Brocq v Le Brocq [1964] 1 WLR 1085 (per
Harman LJ)
·
Livingstone-Stallard v Livingstone-Stallard
[1974] Fam. 37 (CA)
·
M v M (Stamp LJ) [1978] 1 FLR 77
·
Martin v Martin [1978] Fam 12 (CA)
·
Minton v Minton [1979] AC 593, per Lord Scarman
·
Mouncer v Mouncer [1972] 1 WLR 321
·
P
(L.M) (otherwise E) v P (G.E.) [1970] 3 ALL ER 659
·
Piglowska
v Piglowski [1999] 1 WLR 1360
·
Re C [1993] 1 FLR 832
·
Re M [1995] 2 FLR 100
·
Re O [1995] 2 FLR 124
·
Re S [1993] 2 FLR 437
·
Re W [1999] FLR 869
·
Richards v Richards [1984] FLR 11 (HL)
· Scott v Scott [1913] AC 417
· Trippas v Trippas, 2 ALL ER 1 (per Lord Denning MR)
·
Wachtel v
Wachtel [1973] Fam. 72, CA
· White v White [2000]
2 FLR 981 (HL)
Cypriot Case-Law:
- Antoniou v Harpa [2001] (unreported)
- Danou v Danou, 9 May 1998, Second Instance Appellate Court, Appeal No 80
- Iacovides A v Iacovidou K, 30 June 2000, Second Instance Family Court, Appeal No 95, per Judge Nicolaides
- Koufalidou v Koufalide [1994], Appellate Court, Unreported
- Loucaidou v Petropoulou, 29 September 2000, Second Instance Appellate Court, Appeal No 107
- Menelaou A v Menelaou F [1993] (unreported)
- Orthodoxou v Orthodoxou, 9 May 1997, Appellate Court, Appeal No 68
- Papapetrou v Papapetrou, 16 October 2001, Second Instance Appellate Court, Appeal No 135
- Pichede v Pichede [1997] (unreported)
- Savvides v Savvidou, 8 May 1997, Second Instance Appellate Court, Appeal No 32
- Sofroniou v Pantazi, 5 May 1998, Second Instance Appellate Court, Appeal No 79
- Zachariou v Zachariou, 27 March 1993, Appellate Court, Appeal No 12
- Zeniou v Zeniou [1998] (unreported)
·
Child
Support Act 1991,
·
Child
Support, Pensions and Social Security Act 2000,
·
Children
Act 1989,
·
Divorce
Reform Act 1969,
·
Maintenance
Enforcement Act 1969,
·
Matrimonial
Causes Act 1973,
·
Matrimonial
Causes Act 1937,
·
Matrimonial
Causes Act 1923,
·
Matrimonial
Proceedings Property Act 1970,
·
Matrimonial
and Family Proceedings Act 1984,
Cypriot and Greek Legislation
· The Relations between Parents and Children 1990 (216/1990)
· Law Regulating Property Relations Between Spouses 1991, amended in 1999, corresponding to A. 52 of the Cypriot Constitution
·
The
· Legislation 104(1)/2003
· Legislation 46(1)/99
· Greek Civil Code
Interviews
- Judge Serghides, President of the
Family Courts of
- Mrs Elena Georghiadou, Council of the Republic at the Attorney General’s Office