1961 May 30 [JOSEPHIDES, J.] HERMINE SONAT THEN HERMINE KAROLINE ANNA HAHN H E R M I N E SONAT T H E N H K R M I N E K A R O L I N E ANNA HAHN, Petitioner, v. K U R B A N SONAT, Respondent. (Matrimonial Petitition No. 4/61). v. KURBAN SONAT Matrimonial causes—Petitition for dissolution of marriage—Alimony pendente lite—Allotted even though there is a plea to the jurisdiction of the Court—Discretion—Quantum—No hard and fast rule. I n this petition for divore, the respondent husband by his answer took objection to the jurisdiction of the Court. The petitioner wife having thereafter filed a petition for alimony pending suit, the respondent swore an affidavit in opposition t o t h a t petition in which he again raised the question of the jurisdiction. H e further disputed the quantum of the alimony. Held:
(1)The fact t h a t there is a plea to the jurisdiction of t h e Court in a matrimonial suit does not affect the power of the Court to grant, in the exercise of its discretion, alimony pendente lite. Ronalds v. Ronalds
(1875)L.R. 3 P . and D . 259, followed.
(2)Taking into account all the circumstances of the case, I think t h a t this is a proper case in which to exercise m y discretion in favour of t h e wife (petitioner) t o grant alimony pendente lite.
(3)As to the quantum, this, also, is a matter of discretion. A sum of £25 per month would'be a fair amount in this case. Hawkes v. Hawkes
(1828)1 Hag. Ecc. 526, a t p.526, per Sir J o h n Nicoll, and statement of the law in Rayden, on Divorce, 8th edition, at p . 424, paragraph 10, followed. Alimony in thesum of £25 monthly, granted 'pendente lite. Cases referred t o : Ronalds v. Ronalds
(1875)L.R. 3 P . and D. 259. Hawkes v. Hawkes
(1828)1 Hag. Ecc. 526. 164 1961 May 30 Matrimonial Petition. Judgment by His Honour Josephides, J. sitting as a High Court in its Original Jurisdiction dealing with a matrimonial cause under section 19(b) of the Courts of Justice Law, I960 (14/60), in which he ordered that the respondent shall pay to the petitioner the sum of £25 per month as alimony pending suit in a petition for dissolution of marriage on the ground of cruelty. E. Liatsos for the petitioner. G. Ladas for the respondent. The facts sufficiently appear in thejudgment of the Court, delivered by : JOSEPHIDES, J.: This is a petition for alimony pending suit. In her petition filed on the 17th March, 1961,the petitioner prays for the dissolution of her marriage to the respondent on the ground of cruelty. In his answer to the petition, filed on the 4th April, 1961, the respondent takes objection to thejurisdiction of this Court to try and determine this case, on the ground that the respondent's domicile of origin is Baku of the Azerbayzan Soviet Socialist Republic; that his domicile of choice is at Munich of the Federal Republic of Germany; that he has acquired the nationality of the Federal Republic of Germany; that he is a temporary resident of Kyrenia, Cyprus; and that his residence here will last as long as he is posted in the F.B.I.S., i.e. the American Wireless Station near Karavas. He further contends that the petitioner's domicile of origin was Czechoslovakia, and her domicile of choice was Munich of the Federal Republic of Germany, and that her residence in Kyrenia, Cyprus, is temporary. The respondent Further alleged in his answer that at the time when he married the petitioner in 1947, at the Registry for Civil Marriages of Mittenwald, Germany, he was lawfully married to another woman since 1936, by whom he has two lawful children ; but at the time of his marriage in 1947 he had lost all hope that his family was alive, ashe left hishome in 1941 tojoin the Army and he had no news from his family. He further alleged that some time in 1958 or 1959 he saw by chance an advertisement in a Russian newspaper, with a photograph of his wife who was stated to be praying for infor165 HERMINE SONAT THEN HERMINE KAROLINE ANNA H A H N v. KURBAN SONAT 1961 May 30 HERMINE SONAT T H E N HERMINE KAROUNE ANNA HAHN v. KURBAN SONAT Josephides, J. mation about her husband who had been missing since 1942, and that he subsequently wrote to her and that he has been in contact with her ever since. The respondent finally alleged that the petitioner agreed in August, 1960, to go to Munich, Germany, where on the 15th September, 1960, the petitioner filed in a competent German Court a petition claiming that her marriage to the respondent be declared null and void, and that that petition is still pending. This is in short an outline of the case which the Court will have to consider and determine when the petition comes on for hearing on the merits. On the 6th April, 1961,the petitioner filed a petition for an order that the respondent should pay tothepetitioner such sum by way of alimony pending suit as may be just. The respondent on the 17th April, 1961, swore an affidavit in opposition to that petition in which he again raised the question of the jurisdiction of the Court. He further stated that he had no other property whatsoever in Cyprus or elsewhere except his car, that his salary is £1,525.- per annum, and that he is paying for the maintenance of the petitioner £20 per month regularly. In the course of the hearing before me this morningthe respondent's counsel stated that the respondent sold his Austin car after the swearing of that affidavit. It was agreed by both sides that the salary of the respondent is £1,525 per annum, and that the petitioner has no income of her own. Both the petitioner's and respondent's counsel have made a number of submissions to this Court, but, apart from the submissions on points of law and from the evidence appearing in the affidavits in the record of this case, as well as the admissions made by both parties, I do not propose to take any other submissions into consideration. The first point which I have to consider in this petition is whether I have jurisdiction to grant alimony pending suit. Theanswertothemainpetition inthiscaseraised the question, of jurisdiction and it is that same question which is raised in the present petition for alimony pending suit. It is well settled that thefact that there isa plea to thejurisdiction of the Court in a matrimonial suit does not affect the power of the Court to allot alimony pendente lite. 166 In Ronalds v.Ronalds
(1875)L.R. 3 P. & D. 259, it was held that where there was a substantial question of jurisdiction and some months were to pass before it could be determined, the Court, in the exercise of its discretion, allotted alimony pendente lite. In his judgment the Judge Ordinary said: "I have no doubt of the power of the Court to allot alimony pending the determination of a question of jurisdiction," but it is a matter of discretion whether it shall be allotted in any particular case. In this case, as it appears that there is a substantial question of domicile to be decided, and as it cannot be determined for several months, the wife is entitled to alimony. I therefore reject theapplication, and theproceedings for alimony must take the usual course". On this authority the Court has jurisdiction to entertain the present petition. The next question which arises for consideration is the exercise of the discretion of the Court whether to grant alimony or not. On the facts as they appear in the main petition and the answer, both the petitioner and the respondent are not citizens of the Republic of Cyprus. It is admitted that the petitioner (wife) has no income whatsoever. They both reside here now, and it will take some time - though I hope not unduly long time - for the main petition to be determined bythis Court. Taking into account all the circumstances of thecase I think that this isa proper case in which to exercise my discretion in favour of the wife (petitioner) to grant alimony pending the determination of the suit. The next and final question before this Court to-day is the assessment of the amount. In Rayden on Divorce, 8th edition, at p. 424, paragraph 10, it is stated that — "The amount may be agreed between the parties; otherwise an amount is usually allotted which will bring the income of the wife up to approximately one-fifth of the joint incomes, but there isno hard and fast rule as to this and each case stands on its own merits". And further down it is stated that "The allowance is entirely in the discretion of the Court and, if the husband's income be very large, the propor167 1961 May 30 HERMINE SONAT THEN HERMINE KAROLINE ANNA H A H N v. KURBAN SONAT Josephides, J. 1961 May 30 HERMINE SONAT T H E N HERMINE KAROLINE ANNA HAHN v. K U R B A N SONAT lion may be smaller, whilst it is necessary to ignore all questions of proportion when the means are very small". The first statement in Rayden is apparently based on Hawkes v. Hawkes
(1828), 1Hag. Ecc. 526,which was a case in which the wife was charged with adultery. In that case Sir John Nicoll said (at p. 526): Josephides, J "(the wife) is, as it were, under a cloud These Courts have in such cases been generally disposed to consider as a fair medium about one-fifth of the net income, but they have allowed their decisions to be regulated by, and to vary according to, circumstances". As already stated in the present case the annual salary of the respondent is£1,525which amounts to £125per month. Taking into consideration the social standing of the respondent and his salary and without in any way being influenced by the fact that the respondent sold his car after the swearing of the affidavit, I consider that a fair amount to be paid in this case would be £25 per month. I accordingly order that the respondent shall pay to the petitioner the sum of £25 per month as alimony pending suit. The first payment to be made on the 20th June, 1961. Alimony inthesumof £25 monthly pendente liteordered. 168