YIOLA STAVRAKI
L.L.C.
ADVOCATES

A Comparative Analysis of Divorce Law in England and Cyprus

 

I)  Introduction 

II) ‘The Origins and Influences of Family Law in Britain and Cyprus; the Importance Attached to the Institution of Marriage and the Perceptions around Divorce’  

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

 

Annexes

Annex 1

Annex 2

Annex 3

Annex 4

Annex 5 

References

 

 

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 (Cyprus) or the influence of legislative and judicial institutions (Britain). Bearing in mind the above considerations, the present thesis will attempt to analyse, compare and assess the provisions of divorce law and, more briefly, parental responsibility and developments of mediation in Britain and Cyprus. The starting point will be an examination of the institutional and political culture of each country, which is essential to comprehend legal policy on divorce.

 

In Britain, the absence of a written constitutional framework and the influence of a particular political process, combined with the evolutionary character of English legal policy, have been most notable.  The product has been a unique family law, instrumental in its reform and deeply individualistic in character, being part of a common law tradition.  Its development from the mid 19th to mid 20th centuries has been characterised by continuity rather than codification and has followed the political traditions of institutions such as the common law, the Monarchy and the Church (Bradley, 2000: 18).  English law has also demonstrated a strong antipathy to state intervention and has been largely dictated by male, upper class interests.  It has been further characterised by a strong judicial culture, traditionally granted ‘authority to do complete justice’ (Cretney, 1999: 286).  As a result, English divorce law has been a recipe for conservatism and has not been subject to any revolution (Bradley, 2003: 135).

 

Cyprus, on its part, has recently followed Greek family law, a civil law jurisdiction and has sought to accommodate the contemporary tendencies prevailing in many European jurisdictions, thus abandoning the common law system that it had adopted under British occupation, although it does not adopt community of ownership.  It is also strongly attached to the elements of religion and tradition, the former still prevailing to a large extent in issues of family law, as will be analysed in the following sections.  Reform in Cyprus has been slow and incremental and has taken place under exceptionally difficult conditions, namely the opposition by the Church (Nicolaou: 1996), as is also the case with Britain, although following the establishment of the Family Courts, change has been readily accommodated to ensure equality for women.  Current political parties have not been as concerned with legal policy on the family as is the case with Britain, with the exception of the issue of mediation (discussed in section VI of the thesis) which has received increasing attention and controversy from the Government, although Cyprus’ recent accession in Europe will certainly arouse greater concern over policies on marriage and divorce (Interview with Mrs Georghiadou, 15/4/05).  The impact of a particular family ideology has, however, been considerable in laying the foundations of family law

 

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 Britain and Cyprus and, more specifically, the grounds of divorce, the financial provisions (including the distribution of assets, the duty of maintenance and the provisions relating to the matrimonial home) and parental responsibility.  The last theme is linked to divorce as ‘You may cease to be a spouse, but you do not cease to be a parent’ (Symes, 1985: 54). 

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 Britain and Cyprus, so as to engage in a meaningful comparison of the two divorce systems.

 

Structure and Methodology

 The essay has 7 sections which examine the British and Cypriot systems in separate parts.  Section III, on the other hand, is based on an integrated analysis and critique, to provide a more direct comparison of the divorce rates between Britain and Cyprus. 

This essay contains both primary sources (interview with the President of the Family Courts in Cyprus and a Council of the Republic of Cyprus) and secondary sources (academic references).  However, the amount of academic work undertaken in the area of family law in Cyprus is disproportional to the vast volume of academic research undertaken in Britain.   

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 Britain is characterised by an aversion to the idea of a ‘nanny state’ (Smart, 2000: 365) in light of its highly individualistic character.  Yet, the Government’s preferred option is to support the institution of marriage, as stated in the Consultation Document, Supporting Families (Great Britain, HO, 1998: 31, para. 4.8): ‘Marriage does provide a strong foundation for stability for the care of children…it makes sense for the Government to do what it can to strengthen marriage’.  Moving further backwards in time, one witnesses a strong pro-family movement in the policies of the New Moral Right which sought to restore heterosexual patriarchy (Abbott and Wallace, 1992: 2). 

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 England, marriage and divorce have been conditioned by ‘a political culture founded on institutions, not constitutions’ (Bradley, 2003: 132).

 

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 Cyprus

 

The institutional and social importance of marriage has also been traditionally appraised in Cyprus, owing perhaps to the culmination of its long history, demonstrating a strong attachment to Christianity.  The family has been traditionally considered the most important institution in Cypriot society.  Especially in villages, people thought of themselves primarily as members of families, and ‘rarely, according to sociologist Peter Loizos, spoke of themselves as individuals in the existential sense’ (Family and Marriage, 2004: 2).  It was believed that only through marriage could women realize their main purpose in life – to become a wife and a mother.  Divorce was thus treated, as in traditional British society, a taboo.

 

Unlike Britain that may be described as a law of institutions, Cyprus has a written constitution and has followed the civil law tradition of Greece, albeit it has not adopted a community of ownership regime.   Prior to 1990, Cyprus had no ‘family law’ as such, as any legislation regulating the family was scattered and was not part of an integrated system of law (Nicolaou, 1996: 121).  In fact, all these laws were brought into force when Cyprus was under British occupation (Cyprus being a former British colony) and were amended by the Legislature in 1990.  Before that, the provisions of the English Matrimonial Causes Act 1950 applied by virtue of s.33(2) of the Cypriot Courts of Justice Law. 

 

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 Cyprus’ Declaration of Independence.  This explains the persisting influence of the Church on matters of family law.  In fact, the modification of family law in Cyprus took place under exceptionally difficult circumstances, leading to a climate of opposition and often, warlike reaction by the Church (Nicolaou, 1996: 133). 

 

Despite the force of religious tradition, the legislators in Cyprus have largely liberalized a law that was highly conservative.  The picture is not yet complete, though, as traces of the previous attachment to religion are still apparent in the amended A. 111 of the Cyprus Constitution.  Hence, ‘The legislator appears to be trapped between the claim for a radical reformation of the law on divorce and the price of the unavoidable clash with the Church’ (Nicolaou, 1996: 133), as has also been the case with British family law.

 

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 Britain, since as long as there are children involved, divorce is never the end of the family (Serghides, Interview on 18/12/2004).  This recent approach may be contrasted with the previous conservative stance adopted by the Attorney General of Cyprus in 1979 who maintained that the legislator must ensure that no easy access to divorce is granted (Tornaritis, 1979: 2).  Change in the perceptions towards marriage and divorce is therefore apparent following the secularization of Cypriot society.  A judge must ensure, though, that a decree of divorce is only issued after a period has elapsed following the couple’s separation (Serghides, 2004: 80) which reminds us of the English Law Commission’s assertions in 1990, illustrated below.  

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 England and Cyprus, attention will now shift to the rise and brief explanation of divorce in both systems.   

According to statistical evidence, British society has recently undergone a galloping rise of divorce rates.  By the late 1980s, England had one of the highest divorce rates in Western Europe (Haskey, 1992: 31-32), whereas divorce has dramatically increased in the last 40 years or so.   ‘Over the last half-century, the marked trend towards divorce intensifies with more recent marriages’ (Gibson, 2000: 43).  It is argued that if such a rate continues at the 1993 divorce pattern, around four in every ten newly formed marriages will end by divorce (Office of National Statistics, 1998: 51).

In contrast to Britain, divorce rates in Cyprus have not undergone any recent dramatic increase.  Further, Cyprus has the highest marriage rates in Europe and divorce rates are relatively low, compared to the rest of the newly-acceded countries or prospective European candidates (see Annex 3, page 77).  For a direct comparison between the crude divorce rates and total number of divorces in Britain and Cyprus, see Annex 1 (p. 74).

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 Cyprus it occurs in marriages of over 20 years duration.  Yet, in both countries, divorce primarily affects marriages that are either fairly short (0-2 years) or as lengthy as 10-14 or 20 years and over.

 

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 Cyprus,

the invasion of the island in 1974 by Turkey, along with the increasing participation of women in the labour market, has afforded women increased economic independence.  Interestingly, in the years 1974-1985, women’s share of the urban work force rose from 22% to 41% (almost doubled), while their share of the rural work fell from 51% to 44.4%.  This decline of employment in the rural areas is the result of a move away from agricultural work and the marked shift to urban occupations (Status of Women: 1997).  Such changes have inevitably affected social attitude towards the institution of marriage. 

Contrasted with Britain, however, the feminist movement in Cyprus has not been as popular in relation to marriage as it has been in the public sphere (employment and politics), owing perhaps to the strong traditional concept of marriage.

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) Cyprus – Grounds for Divorce

 

In Cyprus, the grounds recognized for divorce are stipulated in A. 111 of the Cyprus Constitution, amended in 1989, and are recognised under Law 95/89.  A. 111(b) established the ground of ‘irretrievable marital breakdown’, attributed either to the fault of the respondent or both spouses and which renders any continuation of the marital relationship unbearable to the petitioner.   

Yet, like Britain, Cyprus combines irretrievable breakdown with a number of fault grounds first introduced by the Church.  These have been in place in Cyprus since the 1951 Turkish Family Law that followed the model of Switzerland, (Serghides, Interview, 22/12/2004).  In specific, the amended A 111 of the Constitution also includes the 10 grounds for separation introduced by the Church.  These include (a) adultery; (b) immoral or dishonourable behaviour or other manifested continuous and inexcusable behaviour of the other spouse resulting in a serious deterioration of the marital relationship and creating circumstances of cohabitation unbearable for the innocent party; (c) absence of one spouse for a continuous period of three years; (d) a threat posed by one spouse against the life of the other; (e) imprisonment of the respondent for a period exceeding seven years; (f) sexual impotence of the respondent during marriage; (g) change of religion or the exercise of moral pressure upon the children to change religion; (h) persistent refusal to have a baby; (i) unjustifiable desertion for two years; and (j) insanity of the respondent for a period exceeding three years, which renders cohabitation unbearable.   Further, a 12th ground enforced under Law 46(1)/99 is irretrievable breakdown following a five-year separation, which is an autonomous ground as held in Zeniou v Zeniou.   

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 Cyprus have held that the interpretation of irretrievable breakdown does not comprise the Church divorce grounds, although some of these are relied upon by the parties in court proceedings.  An example is the unjustifiable desertion clause for 2 years used in the case of Kokkinou v Kokkinou [1990].  Further, the Constitution of Cyprus stipulates that any other grounds for divorce may be introduced by the House of Parliament (‘Vouli’), after consulting the opinion of the Church.  Such a ground has been introduced in 1989, which is the irretrievable breakdown of marriage following a four year-period of separation (reducing the previous 5-year separation).   

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 Cyprus are the Family Courts, hence abolishing the formal jurisdiction of the Ecclesiastical Courts.  This change was based on the Greek civil law model and is highly important not just for procedural reasons but also within the context of Cyprus’s historical and social development.  Indeed, ‘A long tradition which had existed since 45 P.C was shattered’ (Nicolaou, 1996: 126).  Further, the High Court has held in Dakarides v Dakaridou [1990] that the jurisdiction of the State Family Courts should be broadened to include all family disputes, including issues of maintenance and parental responsibility.   

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 Cyprus need to obtain two divorces: one from the family court (as otherwise they would be committing bigamy) and a divorce from the ecclesiastical courts (to prevent “self-excommunication” from the Church). The Church has even made several vain attempts to strike down the Constitution’s provisions as unconstitutional by resorting to Cyprus’ Supreme Court.  This problem might well exert a negative influence on Cyprus’ accession to the EU.  The fierce opposition of the Church against the ground of irretrievable marital breakdown is, however, unjustified as this ground has formed part of Cypriot family law since the Turkish occupation of the island (Serghides, 2004: 77-78).  The Church has further ignored the provisions of A. 111 that require it to appoint a priest to preside over the family court.  Neither has it complied with Law 22/90 requiring the parties to undergo a procedure of reconciliation before the competent Bishop of the Church prior to filing a petition before the family court.  In this respect, an interesting difference with the English family law system is that in Cyprus the Church has entered into direct conflict with state law, whereas in Britain, state and Church law have entered a symbiotic relationship, as also mentioned above (Bradley, 2003: 132). 

Further, contrasted to Britain, divorce by consent has not yet been recognized in Cypriot family law, indicating its conservative character.  Such change would be highly desirable as it would introduce ‘…the element of private autonomy in a field previously deemed not to be affected by it…’ (Panayiotidou and Hadjiyorki, 2000: 666) and would stress the consensual nature of marriage (Serghides, 1997: 37; Serghides, 2004: 79-80).  One should note, though, that 2 Bills on consensual divorce are currently considered by the House of Parliament, both introduced by private members of Parliament; the one by Mr Klerides (based on the Greek civil model) and the other by Mr Taramountas.  It is questionable, however, whether the Bills will be passed, given the fierce opposition by the Church.

 In addition, clarity has been inserted in the law by recognizing long separation as a presumption of irretrievable marital breakdown.  This period has now been set at four years (Law 104(1)/2003), amending the previous separation period of 5 years (established under Law 46(1)/99).  Further, a Bill is currently being considered by the House of Parliament which proposes to set separation at 4 years in all cases, so as to add more coherence to the law.

 

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 Zachariou v Zachariou [1993] the court stressed that its task was to decide, as a matter of fact, what the essential cause of the breakdown was.  It was held that swearing or accusations offending a spouse’s honour or dignity or demonstrating disrespect towards him may amount to irretrievable breakdown.  Similarly, in Danou v Danou [1998] continuing use of indecent words towards the husband and a demand by the wife for the latter to abandon the matrimonial home were sufficient to cause the collapse of the marriage.  This case was followed in Sofroniou v Pantazi [1998], where the applicant husband argued that the wife had demonstrated feelings of pathological jealousy during marriage and launched baseless accusations against the husband in public that he was having an affair with another woman colleague in the army.  The wife had also demonstrated an unacceptably immoral conduct towards the husband’s children from his first marriage.  The court found for the applicant, as there was irretrievable breakdown of marriage by fault which rendered the marital relationship intolerable for the husband.  Further, irretrievable breakdown by fault of both spouses was established in the authority of Orthodoxou v Orthodoxou [1997]. It was stressed, however, that the first instance court had erred in law in examining the whole spectrum of the marital relationship prior to the breakdown, given that the court’s findings ought to be confined to the dominant incident leading up to the breakdown.

 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 Britain and Cyprus

 In England, it is believed that restrictive divorce legislation is essential to protect society (Bradley, 2003: 139), as evidenced through the development of the grounds of divorce, which although endorse irretrievable marital breakdown, still cling to the phantoms of the past, namely fault grounds.

 Similarly, in Cyprus, ‘irretrievable breakdown’ stands along the fault grounds introduced by the Church as the amended A 111 of the Constitution also includes the 10 grounds for separation introduced by the Church.  Here, the influence of the Church is stronger than in Britain given its striking opposition to the provisions of the Cypriot constitution and the pronouncements of the family courts.  

 Another important difference is that most petitions in Cyprus are based on marital breakdown, whereas in Britain such defence is fairly rare (see Annex 4, p. 79).  Further, in Britain it is the wife that advances most petitions, whereas in Cyprus, it is the husband, as the Annex illustrates.  This observation is very interesting and will be linked to a critique of the provisions of financial maintenance in both systems, analysed in Section V.

 Further, the paternalistic attitude of the courts in refusing to grant divorce where breakdown has not been sufficiently strong is notable in the Cypriot case-law (see Loucaidou v Petropoulou above) and resembles the English attempts to strengthen the institution of marriage through the piecemeal development of the law and the tendency to cling to fault grounds.

  

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 England and Cyprus respectively.  These will be linked to issues of sex equality in society, so as to engage in a general critique of the law. 

 

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 Davis v Davis [1967], the CA awarded a wife a lump sum £25,000, as it would enable her to purchase a house property ‘in the sort of neighbourhood where a woman with this background can reasonably expect to live’.  Interestingly, this right of support depended on the innocence of the wife from any misconduct, as analysed below.

 

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 Britain’s labour market has increased radically in recent years, their level of income is considerably lower than that of men, despite the passage of the Equal Pay Act 1970.  In fact, women in full-time employment earn 75.5% of what men earn (Bennett, 2005: 1) and predominate in poorly paid and insecure jobs (Fredman, 1997: 414).  It appears that ‘Women have lost out because in a legal system which operates its property law on the basis of a free market system of value, those whose contributions to life…have been made within the home…have made no bargain in money’s worth that would be recognizable to the law’ (Sawyer, 2004: 33), hence reflecting a prevailing market economy and a marginal British welfare state.

 

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 Cyprus, the distribution of marital property following divorce in Cyprus is governed under the 1999 Law Regulating the Property Relations of Spouses (which corresponds to Article 52 of the Cypriot Constitution).  This has amended the corresponding laws of 1991, 1995, 1996 and 1998, and applies to both ‘movable’ and ‘immovable’ property acquired before the conclusion of the marriage by any of the two spouses, as defined in A 2 of the amended 1999 law.

 

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 Cyprus divorce law.

 

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 Britain.  This applies provided that the husband has the financial ability to find another housing accommodation (Interview with Mrs Georghiadou, 13/4/05).  On the other hand, where the house is the only asset of the husband and he lacks the resources to buy another house, the courts may order for the sale of the property so as to accommodate for the housing of both spouses.  This certainly strengthens protection to the wife.  This section is therefore equity-oriented as indicated in the cases of Pichede v Pichede [1997], Mainaki v Christou [1996] and the earlier authority of Christodoulou v Christodoulou [1976], irrespective of the existing legal rights of the spouses. 

 

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 Cyprus, although women have increasingly participated in the labour market in recent years, the occupational segregation of the sexes has remained apparent in the 1990s and largely remains so.  For instance, in 1985, only one woman in fifteen was placed in an administrative or managerial position. ‘Women’s share of professional jobs increased to 39% by the 1990s, compared with 36% 10 years earlier, but these jobs were concentrated in medicine and teaching, where women had traditionally found employment’ (Status of Women, 1997).  In specific, women’s pay amounts to 70% of that of men which places Cyprus at the second worst place in Europe, after Portugal, in terms of equal pay for the sexes, despite recent legislation on equal pay for equal work (PIO Source).  These facts prove that increasing inequalities may be produced against the woman and the law has arguably sought to fill in these gaps by inserting more justice-oriented provisions favouring the position of the wife.

 

Preliminary Concluding Remarks on the Financial Provisions of Divorce in Britain and Cyprus

One may conclude so far that the extensive judicial discretion in settling marital property post-divorce in England may be contrasted with the Cypriot judges’ limited discretion, confined by the written provisions of the Constitution.  As a result, principles in British legislation, such as ‘equality’, tend to be obscured behind precedents, hence also lowering the profile of legislation. 

Both systems are nonetheless fairly individualistic as they do not endorse formal ‘equality’ with respect to property distribution.  In Britain, the cases of White, Cowan and Parlour are striking evidence of the judges’ reluctance to lay down a general principle of equality.   In addition, the increasing ambiguities and uncertainties concerning the distribution of either income or property demonstrate the reluctance of judges and law reformers to commit themselves to any general principles on issues such as the nature of marriage, the position of women and the link between public and private support (Dewar, 1984).   In this respect, the concept of ‘fairness’ articulated in Cowan has been dressed in flexible and indeterminate terms (Bailey-Harris, 2001: 534).  Does this mean that codification should substitute invariable judicial discretion with emphasis on universal and less flexible principles?  Although Lord Nicholls in White sought to elevate a principle of non-discrimination between the spouses that would have universal application, the introduction of the term ‘yardstick’ (a device of the law of Australia; see the Commonwealth Family Law Act 1975) arguably defeated the expectations of an undisputed rule of equality.  White still remains a powerful authority, though, for departing from the unclear concept of ‘reasonable requirements’ and making the law more comprehendible to the common layman (Duckworth and Hodson, 2001: 29).  It has also broadened the ambit of the available pool of assets on which the yardstick equality may operate.  The post-White era, however, has arguably eliminated the prospect of an overhaul community-oriented reform which would be the only solution to the introduction of equality (Bailey-Harris, 2001: 549).

 

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 Britain, the family home is subject to a trust for sale, hence accommodating child welfare and the wife’s interests, at least until the child leaves school. Further, in both Britain and Cyprus, maintenance is capitalized and the financially weaker party (usually the wife) is entitled to support through periodical payments.  Hence, although ‘fairness’ has substituted ‘equality’ in Britain, ex-spouses may still receive large amounts of maintenance, as indicated by the case-law above.

 

Further, as Annex 2 (p.76) illustrates, it is the wives in Britain that advance the most petitions for divorce, in contrast to Cyprus where it is men.  This is striking, given the rejection of any explicit principle of equality of assets post-divorce; it proves that divorce legislation plays no real impact on divorce rates.

 

VI) Mediation in Family Disputes – Objectives and Developments in Britain and Cyprus

 

i) Mediation in Britain

 

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 UK.  Here, one may note the heavy weight of values and processes identified in section II, as English divorce tradition is founded on strong judicial creativity.  Yet, the failure to enact this Act has been criticised for undermining marriage and encouraging divorce, by making the latter ‘socially irresponsible’ (Fricker, 2000: 89).

 

 

ii) Developments in Cyprus

 

The benefits of mediation have also been explicitly acknowledged by the President of the Family Court in Cyprus, G A Serghides, in a Public speech delivered in 1999.  In light of the 4th European Conference on Family law in Strasbourg (1998), Judge Serghides has stressed that the family should be self-governed and remain viable following divorce (Serghides, 1999: 43), as also stressed by British academics above.

 

In Cyprus, mediation has not yet been established but is not a foreign concept to the country’s history as the Greek Orthodox priests traditionally assumed the role of the mediator in solving marital disputes, especially during the Ottoman Period.   It is acknowledged that mediation resolves conflicts constructively, encouraging the parties to participate in their resolution.  It is certainly preferable to litigation which often exacerbates sentiments of grief, anger, rejection, hostility and bitterness accompanied by divorce (Judge Sergides, Interview: 18/12/2004).

 

On the other hand, mediation may be hard to establish in Cyprus where the public has traditionally vested complete trust in the Courts, as has also been the case with Britain; The counter-argument, of course, is that the public will gradually endorse this institution once it operates successfully.  The need to establish mediation has also been stressed by the 1998 Resolution (R (98)) of the European Council of Ministers calling upon member states to introduce this institution, following the increasing rates of divorce in recent years and the focus on child welfare.  To this end, a Committee was set up in Cyprus in 1998, by the initiative of the Ministry of Justice (13 August 1998), to examine the issue and advance suggestions to the Council of Ministers.  Judge Serghides himself suggests that Cyprus should introduce legislation that will deal exclusively with this issue (Serghides, 1999: 56).

 

 

 

 

 

 

 

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 England’s individualistic political culture and market economy.  Hence, children often form part of a nexus of power within family relations (Smart, 1989: 1; Thery, 1986) which the state may use to promote particular policies.

 

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 Adams [1984], divorce already places substantial pressure on children and so, no additional pressure should be imposed on them.

 

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 Cyprus Family Law

 

The focus on the interests of the child has also informed the legal position in Cyprus, as demonstrated by both legislation and case-law.

 

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 Britain. 

 

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 Britain, no ‘joint custody’ has been endorsed under the Cypriot legislation.  This is perhaps a result of the perception that mothers are best equipped to take care of the children.  Yet, desertion of the child by the mother is likely to grant legal custody of the child to the father.

 

‘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 US.  The real question was which parent was the most suitable to take care of the child, in light of the mother’s decision to move abroad.  On the other hand, following the English authority of P (L.M) (otherwise E) v P (G.E.) [1970], the courts should not interfere in the choice of the way of life of the parent who has custody of the child, provided the decision is reasonable.

 

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 Britain.

 

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 Britain and Cyprus

 

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 Britain, whereas it is more specific in Cypriot legislation.

 

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 Britain (see Annex 5), it may be questioned whether the current non-regulation is justified.

 

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 England and Cyprus unless where it contradicts the best interests of the child.  This presumption may be rebutted, though, when the father exercises violence against either the child or the mother, as affirmed by Cypriot judges, whereas the presumption still remains relatively strong in England, despite recent positive developments.

 

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 (where assessment of maintenance is undertaken by the CSA).  The formula of assessment is arguably much simpler in Cyprus than England, where both Mrs Thatcher’s and Tony Blair’s model have failed for want of simplicity.

 

 

 

 

VIII) Conclusion

 

The present thesis has sought to compare the divorce law of Britain and Cyprus, with particular focus on the grounds of divorce, the financial relations of the divorcing couple and, more briefly, parental responsibility, by examining the political processes, religious values, family ideology and political economy underpinning both systems.  

 

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 Greece, although it has not adopted community of ownership.  The Cypriot civil law tradition has arguably embraced stronger social engineering and a lower level of confidence in the judiciary in delivering judgments.  Whereas Britain is a law of institutions – the Church, the judiciary and the House of Lords, in Cyprus, the discretion of the judiciary has been confined by the written constitution and of course, the pervasive influence of the Church.   In both countries, however, mediation has not been established, owing to the high confidence vested in the judiciary, although its perceived benefits are persistently acknowledged.  Perhaps in Cyprus, this institution will soon be successfully established, as strongly urged by the Government.

 

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 Britain and Cyprus, with the former system being administrative-based and the latter court-based.

 

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 England, ‘It seems to be the destiny of English family law reform to proceed in piecemeal fashion’ (Eekelaar, 1982: 420).  Obstacles to reform have perhaps been even more striking in Cyprus, given the disrespect of the Church to the Constitution, although the Family Courts have been decisive in reforming legal policy.

 

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 England, divorce law has been influenced by the weight of historical tradition, particular class and national interests, individualism, a market economy and a strong judicial conservatism.  In Cyprus, the influence of religion and tradition has also been considerable, whereas the equality drive drawn from the Greek jurisdiction has also been notable.  This brings us back to the point made in the introduction that every system of family law is inextricably linked to issues of power structure, values, politics, religion and a particular welfare consensus. Yet, both countries are members of the Union which encourages member states to adopt equality on property distributions, both during marriage and upon divorce:  ‘Spouses shall enjoy equality of rights and responsibilities…in the event of its dissolution [ie of the marriage]’ (European Convention on Human Rights, Protocol 5: A 5).  Cochrane et al also consider the possibility of a supranational European welfare state (Cochrane, 2001: 271) as the sovereignty and autonomy of member states are being eroded (Leibfried, 2000: 45; Markesinis, 1994). On the other hand, Bradley refutes the idea of ‘a family law for Europe’ as this would imply the abandonment of a significant aspect of national sovereignty (Bradley, 2002: 71). 

 

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 Europe may, however, be incompatible with each system’s particular legal and political traditions. 

 

There are, indeed, in this…[area] of public policy, hard choices to be made’ (Cretney, 1999: 312).

 

 

 

 

 

 

 

Annexes

Annex 1:

 

Source: Council of Europe, (2003) ‘Recent Demographic Developments, 2003’

 

 

 

 

 

 

 

 

Year

CY

UK

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

UK

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 UK

 

 

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 Cyprus in the year 2003

 

 

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 Cyprus

 

 

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 UK

 

 

 

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

 

 

 

 

REFERENCES:

     Abbott, P. and Wallace, C. (1992) ‘Familialism in New Right Thinking’                        

           The Family and the New Right, London, Concord, Mass: Pluto Press 

 

     Archbishop of Canterbury’s Group, Putting Assunder: A Divorce Law for a Contemporary Society   

 

     Bailey-Harris, R. (2001) ‘Dividing the Assets on Family Breakdown’, 54 Current Legal Problems    

 

     Bainham, A. (2001) ‘Men and Women Behaving Badly’, 21(2) Oxford Journal of Legal Studies

 

Bainham, A. (1990) ‘The Privatisation of the Public Interest in Children’, 53(2)   

 Modern Law Review 206

 

      Beckett, J. V. (1986) The English Aristocracy, Blackwell       

 

Bennett, M. (2005, 6 January), UK Gender Pay Gap – GMB Analysis, GMB Publications  

 

BIICL (British Institute of International and Comparative Law) (1966), Parental

       Custody and Matrimonial Maintenance: A Symposium, BIICL Comparative Law

       Series

 

Bird, R. (2004) ‘New Deal for Wives or More of the Same?’ Family Law

 

Blair, T. (1997, Oct 1) Speech, edited in The Guardian, p.8

 

Bradley, D. (2003) ‘Comparative Law, Family Law and Common Law’, Oxford  

      Journal of Legal Studies

 

Bradley, D. (2002) ‘A Family Law for Europe?  Sovereignty, Political Economy and 

      Legitimation?’, in K. Boele-Woelki et al (eds.) Perspectives for the Unification or

      Harmonisation of Family Law in Europe, Antwerp, Intersentia, 2003

 

Bradley, D. (2000) ‘Family Law and Welfare States’ in Melby K. et al (eds.) The

     Nordic Model of Marriage and the Welfare State, Copenhagen, Nordic Council of  

     Ministers

 

Bradley, D. (1999) ‘Convergence in Family Law: Mirrors, Transplants and Political

      Economy’, 6 Maastricht Journal of European and Comparative Law 127

 

Burgoyne, J., Ormrod R. and Richards, M. (1987) Divorce Matters, Harmondsworth, 

      Penguin

 

      Charles, N. (2002) Gender in Modern Britain, Oxford, OUP

 

Church of England Report, 1955

 

Cochrane A., Clarke J. and Gewirtz S. (2001) Comparing Welfare States, Family Life

      and Social Policy, SAGE Publications, London, Newbury, New Dehli

     

Cretney, S. M. (2000) Cretney’s Family Law, Sweet and Maxwell, 4th  edition

 

Cretney, S. M. (1999) ‘Trusting the Judges: Money after Divorce’, Current Legal 

      Problems 286

 

Cypriot Information Resource (2004, 12/11), Family and Marriage

 

Davies, G. and Murch, M. (1988) Grounds for Divorce, Oxford: Clarendon

 

Dewar, J. (1984) ‘Reforming Financial Provisions: the Alternatives’, Journal of

       Social Welfare Law 1

 

Dewar, J. (1998) ‘Land, Law and the Family Home’, in Dewar J. and Bright S. (ed.)  

       Land Law: Themes and Perspectives, Oxford, OUP

 

Dicey, A. V. (1914) Lectures on the Relation between Law and Public Opinion,

       Macmillan, 1948

 

Dicey, A. V. (1905) ‘The Paradox of the Land Law’, 83 Law Quarterly Law Review 

        221

 

Douglas G., Murch, M., Scanlan, L. and Perry A. (2000) ‘Safeguarding Children’s

 Welfare in Non-Contentious Divorce: Towards a New Conception of the Legal 

  Process?’, 63(2) Modern Law Review 177

 

Douglas G. (1990) ‘Family Law under the Thatcher Government’,17(4) Journal of

      Law and Society 411

 

Duckworth P. and Hodson D. (2001), ‘White v White: Bringing s.25 Back to the  

      People’, 31(1) Family Law 24

                                                               

Eekelaar, J. (2000) ‘Post-Divorce Financial Obligations’, Cross Currents: Family

 Law and Policy in the US and England, in Sandford K., Eekelaar J. and Maclean

 M. (eds), Oxford University Press, p.405

 

Eekelaar J. (1991) Regulating Divorce, Oxford Socio-Legal Studies, Clarendon Press,  

      Oxford

 

Eekelaar, J. (1984) ‘“Trust the Judges”: How Far should Family Law Go?’, 47

     Modern Law Review 597

 

Eekelaar, J. (1982) ‘The Law Commission Reports on the Financial Consequences of

      Divorce’, 42 Modern Law Review

 

      Eekelaar, J. (1979) ‘Some Principles of Financial and Property Adjustment on

  Divorce’, 95 Law Quarterly Law Review 253

 

Eekelaar, J. (1978) Family Law and Social Policy, Weidenfeld and Nicolson, London

 

Eekelaar J. and Clive (1978) Custody after Divorce

 

      Ellmann, I. M. (1997) ‘The Misguided Movement to Revive Fault Divorce and Why 

           Reformers should Look Instead to the American Law Institute’ 11 International

Journal of Law, Policy and the Family 216

 

Finer Report, Finer Joint Action Committee (1977), One Parent Families and Family

Courts, 2837/75/KT

 

Finer M. and MacGregor O.R. (1974) ‘The History of the Obligation to Maintain’ in

      Report of the Committee on One-Parent Families (Cmnd. 5629), Vol. 2, Appendix

      5,85

 

 Forster, J. (1982) Divorce Conciliation (A Personal Study)

 

Fredman, S. (1997) Women and the Law, Oxford Monographs on Labour Law, 

    Oxford University Press

 

Freeman, M. (2000) ‘Disputing Children’, Cross Currents: Family law and Policy

 in the US and England, in Sandford K., Eekelaar J. and Maclean M., (eds.), 

 Oxford University Press, p. 44

 

Fricker, N. (Judge) (2000) ‘Family Law in the New Millennium: A Vision for Reform  

      -A View from the Front Line, in Cretney, S. (ed.) Family Law: Essays for the

             New Millennium

 

http://www.peacewomen.org/news/Cyprus (2004) Gender Equality in Cyprus Still a 

             Long Way to Go

 

Gibson, C. (2000) ‘Changing Family Patterns in England and Wales Over the Last

       Fifty Years’, in S Katz et al (eds.) Crosscurrents, Ch 2, Oxford, OUP, p. 31

 

Gibson, C. (1994) Dissolving Wedlock, London: Routledge

 

Giddens, A. (1998) The Third Way: The Renewal of Social Democracy, Cambridge:

       Polity Press

 

Glendon, M. A. (1989) The Transformation of Family Law: State, Law and Family in

      the US and Western Europe, The University of Chicago Press, Chicago and

      London

 

Gray, K. (1977) The Reallocation of Property on Divorce, Oxford: Professional  

       Books

 

Gutteridge, H. (1949) Comparative Law, Cambridge: UP

 

Hale, B. (1998) ‘Private Lives and Public Duties: What is Family Law for?’, 20

      Journal of Social Welfare and Family Law 125

 

Haskey J. C. (1992) ‘Patterns of Marriage, Cohabitation and Divorce in the Different

 Countries of Europe’, 69 Population Trends 27

    

Hoggett, B. (1992) ‘Comprehensive Mediation in NFCC Projects’, 22 Family Law

       219

     

      Holdsworth, W. (1942) A History of English Law, Methuen, Vol. 3

 

Home Office (2004) Green Paper, Parental Separation: Children's Needs and

       Parents’ Responsibilities, The Stationery Office

 

      Home Office (1998) Chapter 4: ‘Strengthening Marriage’, Supporting Families: A

      Consultation Document, The Stationery Office

 

Home Office (1990) White Paper, Children Come First, Cm 1263, The Stationery 

      Office

 

Honore, T. (1982) The Quest for Security, London, Stevens

 

House of Lords (1979) Parliamentary Debates – Speech by the Bishop of Guilford

 

Humphries, J. (1999) ‘Special Issue on the Family: Introduction’, 23 Cambridge

      Journal of Economics

 

Johnson, K. (1968) ‘Divorce: the Financial Facts’, New Society 379

Klatch, R. E. (1987) Women of the New Right, Philadelphia: Temple University Press

Lantz H. R. & Snyder E. C. (1982) Marriage, An Examination of the Man – Woman

       Relationship, 2nd edition, New York: Wiley

Law Commission Report (1990) The Ground for Divorce

 

Law Commission Report (1990) The Ground for Divorce

 

Law Commission Report (1965) Reform of the Grounds of Divorce, the Field of

   Choice

 

LCD (1995) Looking to the Future: Mediation and the Ground for Divorce: The

       Government’s Proposals, London, HMSO, Cm. 2799

 

Leibfried, S. (2000) ‘National Welfare States, European Integration and

        Globalization: A Perspective for the Next Century’, 34(1) Social Policy and

        Administration 44

 

Levin, J. (1984) ‘Maintenance: Problems and Priorities’ in Freeman M. D. A. (ed)

       The State, the Law and the Family: Critical Perspectives, Tavistock Publications,

 Sweet and Maxwell, London and New York

 

      Luepnitz, D. A. (1982) Child Custody, Lexington Books, Massachusetts, Toronto

 

Maclean, M. (1994) ’The Making of the Child Support Act 1991: Policy Making at

the Intersection of Law and Social Policy’, 21(4) Journal of Law and Society, 505

 

Maclean, M. (1991) Surviving Divorce: Women’s Resources After Separation,

      MacMillan

 

Markesinis, B. S. (1994) The Gradual Convergence, Clarendon Press

 

Morton Report (1956), published by the Royal Commission on Marriage and Divorce,   

      Cmnd 9678

 

Murphy, T., Roberts, S. and Flessas, T. (2004) Understanding Property Law, 4th

      ed., London, Sweet & Maxwell

 

Nicolaou E. (1996) ‘Cyprus - Recent Developments in Family law in Cyprus (p.121-

       134), in Andrew Bainham (ed.), The International Survey of Family Law,

        Martinus Nijhoff Publishers, The Hague/Boston/London

 

Office of National Statistics (1998) Social Trends 28, London: HMSO, 51

 

Official Report (HC) (1951), Vol. 485, col. 941

 

O’Donovan, K. (1984) ‘Legal Marriage – Who Needs it?’ 47, Modern Law Review 

        111

 

O’Donovan, K. (1982) ‘Should all Maintenance of Spouses be Abolished?’, 45(4)  

        Modern Law Review 424

 

 

Panayiotidou A. and Hadjiyiorki C. (2000), ‘Family Law’ Ch. 16, pp.657-680,  

       Andreas Neocleous & Co, Introduction to Cyprus Law, in Campbell D. (ed),   

       published under the auspices of the Centre for International Legal Studies, 

       Yorkhill Law Publishing

 

Papazisis, N. (1992), ‘Relations between Spouses during Marriage and 

  Divorce’, Cyprus Law Review

  

Parkinson, L (1986), Conciliation in Separation and Divorce: Finding Common

        Ground, Croom Helm, London, Sydney, Dover, New Hampshire

 

Parkman, A. M. (1992) No-Fault Divorce: What Went Wrong?, Westview Press,

       Boulder, San Francisco, Oxford

 

Phillips, R. (1988) Putting Assunder: A History of Divorce in Western Society,  

       Cambridge: Cambridge University Press

 

Pollock, F. and Maitland, W. (1968) The History of English Law before the Time of  

       Edward I, 2nd edition, Cambridge: Cambridge University Press

 

Probert, R. (1999) ‘The Controversy of Equality and the Matrimonial Causes Act 

       1923’, 11(1) Child and Family Law Quarterly 33

 

Pryor, J. and Seymour, F. (1996) ‘Making Decisions about Children after Judicial

        Separation’, 8 Child and Family Law Quarterly 229

 

Redmayne, S. (1993) The Matrimonial Causes Act 1937: A Lesson in the Art of

        Compromise’, Oxford Journal of Legal Studies 183

 

Richards, M. (1996) ‘Divorce Numbers and Divorce Litigation’, 23(6) Family Law 

        151

 

Roberts, S. (2000) ‘Family Mediation in the New Millenium’, in Cretney, S. (ed.)

        Family Law: Essays for the New Millennium, Family Law  

 

Roberts, S. (1998) ‘Decision Making for Life Apart’, 58 The Modern Law Review

        714

 

Rowthorn, R. (1999) ‘Marriage and Trust: Some Lessons from Economics’, 23

        Cambridge Journal of Economics 661

 

Sawyer, C. (2004) Equity’s Children – Constructive Trusts for the New Generation’,

       16(1) Child and Family Law Quarterly

 

Sclater, C. and Piper, S. (2001) ‘Social Exclusion and the Welfare of the Child’, 28(3)

        Journal of Law and Society 409

 

Serghides, G. A. (2004) (translated in English): ‘Family Policy in Cyprus with respect

       to Family Law, and with emphasis on Divorce Law’, p.73, in Papaeustathiou N.

       (ed.), The Newspaper of the Cyprus Bar Association, Issue 1

 

Serghides, G. A. (1997) Grounds for Divorce under the Law of Cyprus: The  

Road to Europe’, The Philips College (ed.), 1(1) PanEuropean Law   

Review 32

 

Serghides, G. A. (1988) ‘Internal and External Conflict of Laws in Regard to Family

       Relations in Cyprus, 1 Studies in Cyprus Law

 

Simpson, A. V. W. (1986) A History of the Land Law, Clarendon Press

 

Smart, C. (2000), ‘Divorce in England 1950-2000: A Moral Tale? in Cross Currents:

        Family law and Policy in the US and England, in Sandford K, Eekelaar J., and

        Maclean M., (eds.), Oxford University Press, p.363

                                                                              

Smart, C. (1996) ‘Good Wives and Moral Lives: Family and Divorce 1937-51’,

          in Gledhill C. and Swanson G. (eds.), Nationalising Femininity,

         Manchester: MUP

 

Smart, C. (1989) ‘Power and the Politics of Child Custody’ in Smart, C. and 

        Sevenhuisjen S. (eds.) Child Custody and the Politics of Gender

 

Smart, C. (1984) The Ties that Bind: Law, Marriage and the Reproduction of

 Patriarchal Relations, Routledge & Kegan Paul, London, Boston, Melbourne  

 and Henley

 

Sturge and Glaser (2000) ‘Contact and Domestic Violence – The Experts’ Court

         Report’, Family Law 615

 

Symes, P. (1985) ‘Indissolubility and the Clean Break’, 48 Modern Law Review 44

 

Thatcher, M. (1993) ‘Not so much a Programme, More a Way of Life’, The Downing

        Street Years, 4 videotapes written and produced by Blakeway D., narrated by

        Tibenham P., Fine Art Productions

 

Thery, I. (1986) ‘The Interest of the Child and the Regulation of the Post-Divorce    

        Family’, International Journal of the Sociology of Law

 

Thorpe, (1998) ‘Dividing the Assets on Family Breakdown’ in Bailey-Harris, R. (ed.)

        Dividing the Assets on Family Breakdown, 1998, Jordan Publishing

 

Tornaritis, K. (1979) (translated in English) Divorce, Nicosia

 

Vaz, K. (Labour MP) (1989) Hansard, HoC, Standing Com. B., Col. 284

 

Mr Justice Wall (2000) ‘Domestic Violence at the Millennium – Contact between

         Children and Violent Parents, in Cretney, S. (ed) Family Law Essays for the

         New Millennium

 

Weber, M. (1978) Economy and Society, in Roth G. and Wittich C. (eds.), Berkeley:

         University of California Press

 

Wilson, B. (1999) ‘Section 29 – A Practioner’s View’, 9(3) Family Mediation 9, The   

         Journal of National Family Mediation

 

 

English Case-Law:

 

 

·         Adams v Adams [1984] 5 F.L.R. 768 (CA)

 

·         Archer v Archer [1999] 1 FLR 327 (CA)

 

·         B v B [2002] 1 FLR 555 (Fam D)

 

·         Bergin v Bergin [1983] 1 WLR 279; [1982] 12 Fam. Law 212

 

·         Burgess 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)

 

UK Legislation

 

·         Child Support Act 1991, UK St 1991, Sweet & Maxwell (ed.)

 

·         Child Support, Pensions and Social Security Act 2000, UK St 2000, Sweet & Maxwell (ed.)

 

·         Children Act 1989, UK St 1989, Sweet and Maxwell (ed.)

 

·         Divorce Reform Act 1969, UK St 1969, Sweet and Maxwell (ed.)

 

·         Maintenance Enforcement Act 1969, UK St. 1969, Sweet and Maxwell (ed.)

 

·         Matrimonial Causes Act 1973, UK St 1973, Sweet and Maxwell (ed.)

 

·         Matrimonial Causes Act 1937, UK St 1937, Sweet and Maxwell (ed.)

 

·         Matrimonial Causes Act 1923, UK St. 1937, Sweet and Maxwell (ed.)

 

·         Matrimonial Proceedings Property Act 1970, UK St 1970, Sweet and Maxwell (ed.)

 

·         Matrimonial and Family Proceedings Act 1984, UK St 1984, Sweet & Maxwell (ed.)

   

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 Cyprus Constitution, 1960

·         Legislation 104(1)/2003

·         Legislation 46(1)/99

·         Greek Civil Code

 

 

 

Interviews

 

  • Judge Serghides, President of the Family Courts of Cyprus, Supreme Court of Cyprus, Family Division
  • Mrs Elena Georghiadou, Council of the Republic at the Attorney General’s Office