clr/1979/1979_1_307.pdf

(1979)since when he has not seen or spoken to her. He further con­ tended thatthewife gavebirth to a child onthe 18th November, 1978 and thatchild was registered in theRegister of Births,kept by the District Officer, under the name of Zacharias with the co-respondent in this petition registered as the father of the child. Held,

(1)that an order for alimony pending suit may be made even if-the wife admits adultery (see Rayden on Divorce, 8th ed. p. 415); and that the Court has, also, power to make an interim order with respect to the maintenance of the children (see Rayden, supra, at p. 444). 5 10

(2)That, bearing in mind all the circumstances of the case, including the allegations of adultery made by the petitionerhusband and their denial by the respondent-wife, as well as the fact that on the evidence it is not proper to come to any con- 15 elusion on the merits of this substantive issue, this Courthas decided to make an order for alimony pending suit for the wife and for the maintenance of the children of the marriage. .

(3)(After referring to the principles governing the amount to be awarded—vide p. 312post) that it transpires, from his own 20 statement and from the fact that until recently he was paying £70.—per month to the wife for alimony pending the already dismissed suit for divorce, thatthe husband is in a position to pay an amountof £60.— per monthfor thewife and £40.—per month for the two children (i.e.£25.—for theeldest and £15.— 25 for the youngest) which amounts, bearing in mind also the social standing of the parties, are fair in the circumstances; and that an order is made accordingly. Application granted. Cases referred to: Sonat v. Sonat, 1961 C.L.R. 164; Wallerv. Waller[1956]P. 300; [1956]2All E.R. 234 (C.A.) Bullockv. Bullockand Vargolici [1942]P. 134; [1942]2 All E.R. 259; Brierley v. Brierley and William [1918] Vol. 34 TimesLaw Reports p.

1. Application. Application by wife for alimony pending suit and for an 308 30 35 1 C.L.R. 5 Holroyd τ. Holroyd & Another interimorderwith respect tothemaintenanceof the twochildren of the marriage. D. Demetriades, for the applicant-wife. A. Pandelides, for the respondent-husband. Cur. adv. vult. A. Loizou J. read thefollowingjudgment. This is apetition for alimony pending suit by the wife and also for an interim order with respect to the maintenance of the children of the marriage, namely Lucia Stefania—and Zacharias.x 10 The facts in support, as set out in theaffidavit are\as follows: The petition for divorce was filed by the husband for the dis­ solution of his marriage to the wife, on the ground of her adultery with Christakis Adonis of Nicosia, named as the co­ respondent in the said petition. There had been a previous 15 petition by the petitioner/husband, which was dismissed as he failed to prove thealleged adultery. Pending that suit, alimony was ordered to be paid to the wife in the sum of £70.— per month, which order was discharged upon the dismissal of that petition. 20 Thewife, in theaffidavit sworn by her,alleges that as a result. of her marriage with the petitioner/husband they have two children, Lucia Stefania, born on the 1st February, 1974 and Zacharias, born on the 18th November,.
2. She further asserts therein, that although the said petition for a dosree of 25 divorce was pending she had been meeting with the petitioner/ husband and as a result of these meetings she gave birth to the second child. The wife has no property of any value anywhere and asserts that the husband is doing business in Cyprus. Heis the owner 30 of a luxurious villa on the main Nicosia—Troodos road, near Koutraphas. He is a citrus merchant with bank deposits, etc. The husband alleges in his affidavit, filed together'with his opposition to the present application, that since the middle of 1971 he had no sexual relations with his wife, that they were 35 living in separate rooms until she left the matrimonial homein themiddle of 1973,since when hehas notseen or spoken toher. He further contends that the wife gave birth to a child on the 18th November 1978—obviously that is the second of the two '309 A. Loizou J. Holroyd τ. Holroyd & Another

(1979)children in respect of which an interim order for maintenanceis sought—and that child was registered in the Register of Births kept by the District Officer under the name of Zacharias with the co-respondent in this petition, namely Christakis Adonis, registered as the father of the child. The wife and the said 5 co-respondent signed therelevant registration form andby these they are as stated in theaffidavit "admitting and or stating that the child Zacharias was that of thewife and thatthefather was the said co-respondent." With regard to his income he states in paragraph 9, thereof, 10 that hehas noincomein Cyprus,heis theowner of ahouseand a farm which has not yet given any income and spends yearly five to six thousand pounds on this farm and theincomehegets from it is£3,500.—the balanceof thecosts for runningthe farm being covered by thecapital which hehas in England;hefurther 15 states that he was a shareholder and director in a company in Cyprus which became insolvent, and as a result he suffered a severe financial loss amounting to £30,000.—. In the affidavit filed by the applicant/wife in reply she denies to have committed adultery with the co-respondent and that 20 the birth certificate attached to the opposition of the husband and the corresponding declaration in the Register of Births should not be accepted by the Court as proving adultery as the husband had sexual relations with her. She goes on to say that the only facts in respect of the petitioner's case is the birth 25 certificate which was issued as aresult of herhusband's persistent denial to submit the registration form for the birth of thechild to the District Officer and she had to register it at all costs, so that apassport would beissued toitfor thepurpose of travel­ ling with her to England to see her mother. 30 Regarding her financial position she states therein that she has a working permit but as a bar woman, which does notseem to her to be thekind of ajob appropriatefor herstanding in life. In the case of Sonat v. Sonat, 1961 C.L.R. 164 Josephides J., held that thefact that there was a plea to thejurisdiction of the 35 Court in a matrimonial suit does not affect the power of the Court togrant,in theexercise of itsdiscretion,alimonypendente lite and referred therein to the English authorities. Moreover in thesamecase in considering whethertheCourtwould exercise 310 1 C.L.R. Holroyd τ.Holroyd &Another . A. Loizou J. its discretion to grant alimony or not took into consideration inter alia the fact that it would take some time for the main petition to be determined by the Court. 5 10 • The power of the Court to grant alimony pending suit is well settled. The case of Sonat (supra) supports this .proposition although it turned on the question of jurisdiction of the Court in general. Moreover, as stated in Rayden on Divorce, .8th Edition p. 415: " An order may be made even if it is clear that there has been novalid marriage, or even if thewife admits adultery." The authority for the latter proposition is the case of Waller v. Waller [1956] P. 300; [1956] 2 All E.R. 234, C.A. Also in Halsbury's Laws of England, Third Edition, volume 12 paragraph 744, it is stated: 15 20 25 30 35 " Since most of the applications for alimony pending suit are made before decree nisi, the Court will not be able to come to any conclusion on the merits of the substantive issuebefore it in deciding what, if anything, is to be awarded to a wife. Nevertheless, the conduct of the parties is relevant to some extent, and the Court will examine the allegations made by both sides. Where the parties have been living apart and the wife's .means are insufficient to support herself and her children, she is entitled to alimony pendente lite, although the husband not having contributed towards her maintenance, she has maintained herself in a precarious fashion for a considerable period prior to the institution of the suit." In the case of Bullock v. Bullock and Vargolici[1942] P. 134; [1942] 2 All E.R. 259, the admission of wife's adultery was withdrawn by her. The parties lived apart by consent,.the husband asked for the Court's discretion; alimony was not refused. Since her withdrawn confession was not conclusive and the wife had filed an answer denying adultery and crosspraying for relief. Whilst on this point and with regard, in particular, to an entry in the Register of Births, of the birth of a child, as evidence of adultery reference may be made to Rayden on Divorce · 311 A.Loizou J. Holroyd v.Holroyd & Another

(1979)(supra.) p. 563 where relying on the authority of Brierley v. Brierley and William [1918] Vol. 34 Times Law Reports p. 458, it is stated: " An entry in a register of births, deaths, and marriages is by statute prima facie, but not conclusive, evidence of all 5 the facts required by statute to be entered therein. Therefore, where a husband, by admissible evidence, has proved the impossibility of access to his wife for a certain period, an entry signed by the wife of the birth of a child during that period is prima facie evidence of the date as well as 10 the fact ol the birth, and, inferentially of thewife's adultery; the Court may, however, require corroboration." Regarding the claim for an interim order with respect to the maintenance of the children the Court has also power to make such an interim order. In Rayden on Divorce (supra) at p. 444 it is stated: " In any suit for judicial separation, or for nullity or dissolution of marriage, the Court may, at any time after the petition has been served and before its final decree, make interim orders with respect to the custody, maintenance and 20 education of any children 'the marriage of whose parents is the subject of the proceedings' ". On the strength of the above authorities and bearing in mind all the circumstances of the present case including the allegations of adultery made by the petitioner/husband and their denial by 25 the respondent/wife, as well as the fact that on the evidence before me I do not feel and I do not think it proper to come to any conclusion on the merits of this substantive issue before me now, I have decided to make an order pending suit for alimony for the wife and for the maintenance of the children 30 the marriage of whose parents isthe subject of these proceedings. The mode of assessment of the proper and fair amount to be awarded in such cases is referred to in the Sonat case (supra) and the English Authorities mentioned therein. In the instant case, however, there are less clear statements made as to the 35 financial condition of the husband. It transpires, however, from his own statement and from the fact that until recently he was paying£70.—per month to thewife for alimony pending the 312 15 1 CX.R. Holroydτ.Holroyd& Another A.LolzoaJ. already dismissed suit for divorce, thatheisinaposition to pay an amount of £60.— per month for thewife and £40.—per monthfor thetwochildren, i.e.£25.—for theeldest and £15.— for theyoungest, which amounts, bearing in mind also the 5 social standing of the parties are fair in the circumstances. I therefore make an order accordingly, the first payment to be made onthe 1stAugust,1979. Costs of the application in favour of the applicant. Application granted withcosts. 313