clr/1966/1966_1_175.pdf

(2)(/>) -'/'he Matrimonial Causes Rules rule 102 Or rule 83. Matrimonial Causes • Maintenance Failure to obey mainte­ nance order • Onus on party in default to show that his failure to obey order was due to his misfortune andnot to his fault Execution Matrimonial Causes Rules, Rule 83.. Matrimonial Causes •Maintenance Arrears -Recovery —Legisla­ tion -Practice and discretion of Court - Limitation in practice to one year's arrears. lii this husband's petition lor divorce, the respondent wile Πled an application for a sluy of the proceedings, until the sum of. £375 arrears payable to her by the husband peti­ tioner uiidcr a maintenance order of this Court made oil the 22nd December, 1959,be paid to her or otherwisesecured. Held, (l)(a) the first question which falls for determi­ nation i\ whether iliis Court hits-power to order stay of pro­ ceedings as applied for. (b) It would 'sccrh that Ihe-law and rules applicable'to matrimonial proceedings arc to be found iri sections I9(b)aiid 29

(2)(

1. b)of the Courts of Justice Law, 1960 (Law of tHe 175 ARTIN STEPHAN HAGOPIAN n. DHKRANOUHI HAGOPIAN (OTHtRWlSE DEKRANOUHI BANTOOUKIAN) 1966 May 9 A R T I N STEPHAN HAGOPIAN t>. L)l kKANOUIII HAGOPIAN (OTHPRWISF DhKRANOUHl RAMBOUKIAN) Republic No. 14 of I960) and the Matrimonial Causes Rules (Subsidiary Legislation, volume II, page 297) Rule 102 of those Rules provides that in any matter the practice and proceduic in regard to which is " n o t governed by law or provided for by these rules the practice and procedure of the Supreme Couit of Judicature in England in respect of like matters shat! apply ". (
2. c)There is no express provision either in the statute law in Cyprus or in the law applicable by the High Court ol Justi­ ce in England with regard to such matters and, consequently we have lo ascertain what is the practice and procedure of the Divorce Division in England in like matters. (
3. d)Counsel loi both parties are agreed that the practice applicable to the present case is to be found in the English case of Leavis v. Leavts J1921] P. 299 ; now reported in [1921] All KR. Rep 266. In that case it was held that, where a husband had tailed to comply with an order of alimony pendente lite, the Court had a discretion whether οι not to allow him to lake a further step in the litigation ; in exercising that discretion the Court would take into consideration whether his failure to comply will» the Court's orders was due to his lauit οι misfortune

(2)Considering that the maintenance order made by con­ sent in December, 1959 is still in force it must, I think, be presumed that the husband's means and circumstances are unchanged as he has not taken any steps lo have the order varied. The onus is on him to show that his failure to pay as ordered was due to his misfortune and not to his fault. He has failed to adduce any evidence to discharge that onus. Having regard lo all the circumstances of this case, and con­ sidering that his failure lo comply with the Court's order is not due to his misfortune, m the exercise of my discretion whether or not to allow the husband to proceed with his petition, I direct that the proceedings be stayed unless he complies with the .said order, subject to what is stated below.

(3)The question which now remains to be determined is whether the husband should be directed to pay the whole arrears of more than six years, that is to say, £375, or some­ thing less. Here, again, I must have resort to the practice of the Divorce Division in England. Payments of mainte­ nance arc intended for the wife's support and not to be hoarded, and therefore, the amount of arrears recoverable is in the discretion of the Court : Campbell ν Campbell 176 11922] I*. 187. Hie wife was entitled to enforce payment of the monies due under the maintenance order by execution against the properly of her husband, or lake proceedings to have him committed to pnson for contempt in not making a payment or a succession of payments lhat had been adjud­ ged lo be within his capacity This she has faded to do : and is a matter of practice the Divorce Division in England imposes a retrospective lime limit οΐ a year, beyond which tlK· husband wo"M not be inquired to pay arrears : Pitcher \. niehet (No. 2) [1956] I All E.R. 463 ; and Luseomhe v. Lus(omhe {Westminster Bank Ltd. . (iainisliee) [1962] I All Η.ΪΪ. 66K

(4)RCIMUL' on ilial pi act ice and in exercise of my discre­ tion, I shall leqinre the husband lo pay lo his wife or lodge in C o n n IMIC year's hack maintenance from l:.l May.

1. namely 160, and the costs o\' this application, before al•lo'.uii!' him to proceed with Ins petition. Older and order as to eosis. ait oidini>ly. fV v . ιefmed leans to . \ l.vavi.s [1921] P. 2 9 9 ; now reported in |I921] Ml F.R Rep. ?6n : Campbell· v. Campbell [1922] P. 1 8 7 : Pihhrr ν 1'i/cher ( N o .2) [1956] I All F.R. 463 : Luseomhe \. Luseomhe (Westminster Bank L t d . - G a r n i s h e e ) 11967] I All L.R.
2. Application. Application by respondent wife to stay proceedings in a petition for divorce, presented by the husband, until the sum of £375 payable to her under a maintenance order of this Court be paid to her or otherwise secured. X. ClcrUle,s\ for the petitioner. S. Dvvk'tiun, The for. the respondent. following judgment was delivered by : JosEPitiDrs, J. : This is an application by the respondent wife for a stay of proceedings in a petition presented by her husband, until the sum of £375, payable to her under a main- 177 1966 May 9 ARTIN STEPHAV HAOOPIAS . " • HAGOPIAN (OTHERWISE DEKRANUI in BAMBOUKIXN) Ι96Λ May 9 A R T I N SH-HMIAK tenance order o f llus Court made on the 22nd December, 1959, be paid to her or otherwise secured to the satisfaction o\' the Court. HACiOI'IAN n. Π) kRANOUni HAGOPIAN (OlMIKWISK Ol.KKANOUHl tlAMIlOIIKIAN) The husband filed his petition for the divorce in I'cbruaiy, 1965, on the ground o f his wife's desertion and the wife filed an answer to the petition in which, inter alia, she contends thai in September, 1959, she filed a petition for restitution o f conjugal rights which was refused on the 22nd December, 1959, and thai on the same day the then Supreme Court o f the C o l o n y o f Cyprus made an order by consent directing her husband lo pay to her, as from the 1st November, 1959, mainlenance for herself during their joint lives until further order at the rale o f £5 per m o n l h , payable monthly ; that on the 15lh January, 1960 the husband paid l o . the wife's counsel the sum o f £10 representing the instalments due on the 1st November and 1st December, 1959, but that he has failed to pay any other instalment or part thereof since (hen. The question which this Court has power applied for. falls for determination is whether to order slay o f proceedings as It would seem that lite law and rules applicable to matrimonial proceedings are to be found in sections 19 (b) and 29

(2)(b) o f ιhe Courts o f Justice Law, 1960, and the M a t r i m o n i a l Causes Rules ( S . u " volume I I , page 297). Rule 102 o f those Rules provides that in any matter the practice or procedure in regard to which is " n o t governed by law or provided for by these rules the practice and procedure o f the Supreme Court of Judicature in England in respect o f like matters shall apply " . There is no express provision either in the Statute Law in C y p r u s - o r in Ihe Law applicable by (he High Court o f Justice in Lngland with regard to such matters and, con­ sequently, we have lo ascertain what is the practice and p r o ­ cedure o f the Divorce Division in England in like matters. Counsel f o r b o l h parties are agreed that the practice appli­ cable l o the present case is l o be fppnd in the English case o f Leavis v. Leavis (1921J P. 2 9 9 ; ' now reported in [1921] AJI li.R. Rep.

1. In that case it was held that, where a hus' «sir* iv. τ ,- ι band had failed l o comply w i l h a n order o f alimonv pendente •lite, Ihe C o u r t had a discretion whether or not t o allow h i m to take a further step in the litigation ; in exercising that dis­ cretion the C o u r t would lake-into consideration whether his failure to c o m p l y with the Court's orders was due to his fault o r misfortune. 178 Relying on thai principle I now turn to the facts o f this case. The only material before this Court is the husband's peti­ tion, the wife's answer, an office copy o f the maintenance order made on the 22iid Decem'hcr, 1959, and certain admis­ sions made in tlie course o f the hearing. Neither party filed any affidavit evidence. The maintenance order o f 1959, which is admitted by the husband, is a consent order. It was further admitted on behalf o f the husband that he has riot made any payments since December 1959aiid that he has not taken any steps t o have the said order varied in any way. Οιΐ the other hand, it is admitted by the wife that she did not take any steps t o have the said order enforced against her husband for a period o f six years until November, 1965, when she applied to this Court, under the provisions o f rule 83 o f the Matrimonial Causes Rules, to have the said order trans­ ferred to the District Court o f Nicosia for execution ; and that in fact she has not taken out any writ o f execution against the husband. The husband has been residing and w o r k i n g in Nicosia during the whole o f this period, while the wife has been living in Rcirul, I ebanon. Consider iπe that the maintenance order made by consent in December, 1959 is still in force it must, I think, be presu­ med that the husband's means and circumstances are unchan­ ged as he has not token any steps to have the order \ a i i e d . The onus is on him to show thai his failure lo pay as ordered was due to his misfortune and not to his fault. He has failed to adduce any evidence to discharge that onus. Having regard lo all the circumstances o f this case, and considering that his failure to comply w i t h the Court's order is not due lo his misfortune, in the exercise o f my discretion whether or not to allow ihe husband lo proceed w i t h his petition, 1 direct thai the proceedings be stayed unless he complies w i t h the said order, subject to what is slated below. The question which now remains l o be determined is whe­ ther the husband should be directed to pay the whole arrears o f more than six years, that is to say, £375, or something less. Mere, again, I must have resort l o the practice o f the Divorce Division in England. Payments o f maintenance are intended for the wife's support and not to be hoarded, and therefore ihe amount o f arrears recoverable is in the discretion o f the Court : Campbell v. Campbell [1922] P.
2. The wife was entitled lo enforce payment o f the monies due under the maintenance order by execution against the p r o 179 1966 May 9 A R T I N STEPHAN HAGOPIAN o. OfcKRANOUHt HAGOPIAN (OTHERW ISF DEKRANOUHI BAMBOUKIAN) i*iw, '" ' Ai;tiN SIII-M\N ΙΙ\...»ΗΛΝ l>i ;.it W i n n ... ,, , (Uitimwisi i>ikt\Niuiiii lM«n.«iki\N» perl> o f her husband, or lake proceedings to have him comm i l l e d lo prison for contempt in not making a payment or ;i succession o f payments thai had been adjudged lo be within | H \ capacity. This she has failed to do ; and as a mailer o f practice Ihe Divorce Division in E-.neland impose:· a retrospective time limit o f a vear, beyond which the husband would not be required to p;iy a r r e a r s : Pilcfwr v. Pileher ( N o . 2) [!956| 1 A l l \ R. 463 ; and Luseomhe v. Luseomhe ( l l v s / miiixta Hunk Ltd. (.ainishee) [1962] 1 A l l R.R. 668 Relying on thai practice and in exercise o f m\ discretion, 1 shall require the husband lo pay to his wife οι lodge in Court one year's back maintenance f r o m the 1st May, 1966, namel> £60, and the costs o f this application, before allowing him to proceed with his petition. Order o f stay o f proceedings accordingly. The husband shall pay lo (he wife the costs o f this application on the scale o f £60 but for one appearance only Order and older as in costs, accordingly. 180