1 C.L.R. 1979 May 5 [A. Loizou, J.] ANDREAS HADJIYIANNIS, Petitioner, v. ALIDA HADJIYIANNIS, Respondent. (Matrimonial Petition No. 1/79). Matrimonial Causes—Jurisdiction—Husband domiciled in Cyprus— Court has jurisdiction to entertain petition for divorce—Law applicable. 5 10 15 20 25 Matrimonial Causes—Divorce—Desertion—Meaning—Physical separation and animus deserendi—Wife leaving matrimonial home, without reasonable cause,for a period of three years immediately preceding presentation of petition and not returning ever since— And with intention to bring matrimonial consortium to anend— Guilty of desertion. This was a husband's petition for divorce on the ground of desertion. The parties were married at the District Office Famagusta on the 14th June, 1956 under the provisions of the Marriage Law, Cap. 279 and they also went through a religious ceremony of marriage in a Greek Orthodox Church at Famagusta. The petitioner was a citizen of the United Kingdom, a member of the Greek Orthodox Church, born and domiciled in Cyprus. The respondent was of German origin and a member of the Protestant Church. In support of the prayer in the petition therewas evidence from the petitioner, which was corroborated on all material respects by another witness, that the respondent wife left the conjugal home at Larnaca in July 1975 and has been living on her own ever since in Limassol; and that for some time prior to her leaving the petitioner she started showing complete lack of interest towards him and made no secret of the fact that she had no feelings for him. Held, (/) on the question of jurisdiction: That on the evidence of the petitioner he is domiciled in Cy227 Hadjiyiunnis v. Hadjiyiannis
(1979)prus and, consequently, this Court has jurisdiction to hear and detennine this petition; and that the law applicable is the En glish Law in force on the day prior to Independence day. Held, (//) on the merits of the petition: (After stating the law governing desertion—vide p. 229 post). That the element of physical separation cannot be questioned; that from her whole conduct the wife's animus deserendi can safely be inferred; that the wife who left the matrimonial home some time in July 1975 and has not ever since returned, did so intending to bring the matrimonial consortium to an end and that intention must be presumed to continue; that she did so without reasonable cause for a period exceeding three years prior to the presentation of this petition; and that, accordingly, a decree nisi will be granted in favour of the petitioner. 5 10 15 Decree nisi granted. Cases referred to: Alexandrou v. Andreou
(1970)1 C.L.R.
- Matrimonial Petition. Petition for divorce on the ground of the wife's desertion. V. Charakis, for the petitioner. 20 Respondent absent, duly served. A. Loizou J. gave the following judgment. This is a hus band's petition for divorce on the ground of desertion. The respondent wife was duly served but she failed to enter an ap pearance or contest the proceedings. The parties were married at the District Office Famagusta on the I4th June, 1956, under the provisions of the Marriage Law, Cap. 116, now Cap.
- They also went through a religious ceremony of marriage in the Greek Orthodox church of Ayia Zoni, in Famagusta in accordance with the rites and ceremonies of that church. The petitioner is a citizen of the United Kingdom, Great Britain, 53 years of age, a member of the Greek Orthodox Church b o m and domiciled in Cyprus and works as an officer in the British Sovereign Base area of Dhckelia. The respondent wife is of German origin, 47 years οΐ age and as shown on the 228 25 ^0 35 1 C.L.R. Hadjiyiannis τ. Hadjiyiannis A. Loizou J. marriage certificate she had been previously married and di vorced and a member of the Protestant Church. Out of this marriage they acquired two children, a boy called Dimitris, born in 1956 and a girl called Paulina, born in
- The 5 children are living with their father who is ready to have them and maintain them. The parties lived in Famagusta until Fe bruary, 1974, when the respondent left the conjugal home and lived separately until July, 1974, when she went to England and then to Germany, her native land.- In September of that year 10 she returned to Cyprus and lived with the petitioner at Larnaca untilthe beginning of July 1975; she then left theconjugal home took with her all her belongings and has been living onher own ever since in Limassol where she took up employment as a stewardess on board the " SOL FRYNI ". 15 As regards the question of jurisdiction I am satisfied on the evidence of the petitioner that he is domiciled in Cyprus and consequently this Court hasjurisdiction to hear and determine the present case, and the Law applicable by the Court on the matter is the English Law inforce on theday prior to Independ20 ence Day. The ground upon which the dissolution of this marriage is sought, is continued desertion for over three years immediately preceding thepresentation of this petition. As stated in Rayden on Divorce, 8th edition p. 161, "The Court has discouraged 25 attempts at defining desertion, there being no general principle applicable to all cases.' But in its essence desertion is the se paration of onespouse from theother,with an intention,onthe part of the deserting spouse, of bringing cohabitation perma nently to an end without reasonable cause and without the 30 consent of the other spouse; but thephysical act of departure by one spouse does not necessarily make that spouse the deserting party. Desertion is not a withdrawal from a place, but from a state of things, for what the law seeks to enforce is therecogni tion and discharge of the common obligations of the married 35 state; the state of things may be termed for short, 'thehome'". As a ground for divorce, desertion must exist for a period of at least three years immediately preceding the presentation of the petition, that is to say, the date on which it is filed. According to the evidence before me which I accept, the res229 A. Loizou J, Hadjiyiannls v. Hadjiyiannis
(1979)pondent wife for some time prior to her leaving the petitioner started showing completelackofinteresttowardshimandmade no secret of the fact that she had no feelings for him. Theelement of physical separation cannot bequestioned and from her whole conduct the wife's animus deserendi, i.e. the intention to bring the matrimonial consortium to an end can safely be inferred. These two elements havebeen proved and exist on the side of the deserted petitioner. 5 The evidence of the petitioner was duly corroborated on all material respects by that of another witness. On the totality of the evidence before me and applying the law as I have attempted to state it (see also on the question of desertion the case of Alexandrou v. Andreou
(1970)1 C.L.R. 297), I have come to the conclusion that the wife who left the matrimonial home sometimeinJuly 1975and hasnot ever since 15 returned, did so intending to bring thematrimonial consortium to an end and that intention must be presumed to continue. Shedid sowithout reasonablecausefor a periodexceedingthree years prior to the presentation of this petition. I, accordingly, find the case proved and I grant a decree nisi 20 in favour of the petitioner. Therewillbe no orderas tocostsasnonehavebeenclaimed. Decreenisi granted. Noorder as tocosts. * - 230 10