1 C.L.R. 1982 February 6 [A. LOIZOIT, J.] GORDON FREDERICK CATL1N, Petitioner, v. BERYL CATLIN, Respondent. (Matrimonial Petition No. 12/79). Matrimonial Causes—Divorce—Desertion—Burden of proof—Matrimonial home-—Rightto decide where matrimonial homeshall be. 5 10 15 20 25 The parties to this petition were married in August, 1964 at a Register Office in England under the provisions of the Marriage Act
- After their marriage thty Jived at various addresses in England until they came to Cyprus in April, 1972 and lived in a jointly owned flat at Riviera Court, Famagusta. They later bought a house at Kanary str. Famagusta, brought their furniture over from England and arranged to leave the Riviera Court flat and reside at the new house which was big enough to receive their furniture. This house was ready by October, 1972 and the petitioner moved and settled therein but the respondent refused to do so. The parties continued living apart until the second phase of the Turkish invasion in August 1974 when, together with other British nationals they were evacuated to Anzio camp at Dhekdia. The petitioner stayed there with an elderly gentleman, but the respondent and the two children of the marriage stayed in another hut. In January, 1975 the respondent left the camp with the children without petitioner's knowledge and consent and the petitioner continued staying at the camp until 1976, when he went and Jived at a house in Larnaca where he lives until now. It was later found out that the respondent went to live in the Turkish occupied area of Cyprus and was not prepared to stay with petitioner allegedly due to his conduct in connection with their joint bank account. 117 Catiin v. CatHn <1982> Upona petition by thehusbandfor dissolution ofmarriage on the ground that the respondenthas desertedhimsince November,1972: Held,that the legal burden of proof, where a husband petitions for a decree of divorce, is on the husband to prove that 5 his wife deserted him without cause; that on the facts of this caseand looking at the totality of the circumstances this burden hasbeendischargedbythepetitioner-husband asontheevidence the respondent-wife has deserted her husband without cause since January 1975; accordingly the petitioner is entitled to 10 a decree of divorce on the ground of desertion. Held,further (after dealing with the principles governing the right of the parties to decide where the matrimonial borne shall be—vide pp. 121-22 post), that considering the overall situationprevailingintheIslandandtheparticularcircumstances 15 of this case, including the excuse given by the respondent not tojoin her husband at Larnaca, thisCourtfindsthat her refusal to join him is unreasonable. Decreenisi granted. Cases referred to: Dunnv. Dunn[1948] 2 All E.R. 822 at p.
- 20 Matrimonial Petition. Petition bythe husband for divorceon theground ofthe wife's desertion. M. Christophides, for the petitioner. 25 G. M. Nicolaides, for the respondent. Cur. adv. vult. A. Loizou J. read the following judgment. This is a husband's petition for divorce on the ground of desertion. The petitioner and the respondent are both British citizens 30 and were married onthe 4th August, 1964,at the Register Office in the County Borough of Liverpool in U.K. under the Provisions ofthe MarriageAct of
- Photocopy of their marriage certificate has been produced as exhibit
- After the said marriage they li\ed at various addresses in the United Kingdom 35 until they came to Cyprus on the 1st April, 1972 and lived in ajointly owned fiat at 24, Riviera Court, John Kennedy Avenue, Famagusta. 118 1 C.L.R. Catlin τ. Catlin A. Loizou J. After taking upresidenceinthesaid flat they bought a house at No. 15, Kanary street, Famagusta. They brought their furniture over from England and it was arranged to leave the Riviera Court flat and reside at the new house which was big 5 enough to receive their furniture. This house was ready by October and the petitioner moved and settled.therein but the respondent refused to do so. They have two children, namely Jennifer-Ann, born on the 6th July 1958 and Timothy Gordon,born on the 21st January 10
- The ground of divorce relied upon in these proceedings is the desertionof thepetilionerbytherespondentsinceNovember 1972,thatis thetimewhen thepetitionerset uphomeatKanary street and the respondent refused to follow him, as alleged by 15 him and stayed on at the Reviera Court fiat with thechildren. After November the petitioner had a neivous breakdown, spent about two weeks at Dr. Kyriakides clinic, then went to London and returnedto Cyprus early in
- Hestayed for a while at the "King George" hotel as the house at Kanary 20 street was cold but after a few weeks he went and livedthere. It was his version in thewitness-box that hetried during 1973, more than once,to go to the flat to see the respondent but he was not allowed in, although the respondent during that time usedtogo and prepare meals for him at Kanary street, but she 25 would not stay there and she would not like the petitioner to go andlivawith heratthe flat. He,however, stated inevidence that hehad asked her many times to go and livewith him but she refused. During thefirstphase of the Turkish invasion he apparently 30 left the house at Kanary street which was too near theline of confrontation in thattown andwhen hereturnedto Famagusta after that phase he was invited by the respondent to the flat for a meal, he asked if he could sleep there bul shi refused to Ut himdoso and stayed at aflatbelonging to anEnglish judge. 35 After tht second phase of the Turkish invasion logether with other British nationals they were evacuated to Anzio camp at Dhekelia. Hestayed there with an elderly gentleman, but his wife, his daughter and son stayed in anotherhut. There&ponden(, howuver, left thecamp in January 1975 with herchildren 119 A. Loizou J. Catlin v. Callio
(1982)without hii knowledge and consent-, whereas he stayed on at the camp until 1976, when he went and lived at No. 4, The 15thofJanuary street, Lamaca, where helives until now. The petitioner found out through the special branch of the British Military Police,that shewent and livedinthe Turkish occupied 5 area. According to the respondent herself, she first went and livedatthe"Sarai" hotelinNicosia,then at the"Altun Tabya" hotelintheoldcityandtheninthehouseofHenriettaAizenova, in that town who still lives, according to the respondent, in a refugee camp. She admitted in evidence that she was not 10 prepared to stay with him as she might lose the money which he withdrew from a joint account in England, and in respect of which proceedings have bsen instituted by her against him and the Bank of Cyprus, with which the money amounting to £25,000.- was lodged in their joint names. 15 On the evidence before me I have no difficulty in concluding that to say the least, since January 1975, the respondent/wife hasdeserted her husband without cause. He asked her tojoin him and she clearly refused io do so. On thisfinding,and as desertion existednot merely for a period of at least threeyears, 20 immediately preceding the presentation of the petition, but for more lhan that, and to be more specific, since January 1975, the petitioner is entitled to a decree of divorce on that ground. Ineed not therefore deal with the situation as it existed before January
- Counsel for the respondent has invited me to rule that this petitioncouldnot succeedbecauseinparagraph 6of thepetition it hasnot been allegedthat therehasbeenconstructive deseilion but merely desertion since November 1972, and that, as stated intheWhileBookfor theyear 1954,p.2346,constructivedssc- 30 tion had to be clearly pleaded. My aforesaid approach of the case, however, renders a decision on this point unnecessary as in any event even for the period between 1972—1974 what was claimed d'd not amount in Law to constructive desertion which arises only inthecasewhereit isclaimed that onespouse 35 is forced by the conduct of the other to leave home. A question, however, that may be relevant to be examined in relation to this case, though not expressly raised, iswhether the petitioner has discharged thelegal burden, which inthecase 120 25 1 C.L.R. Catlin v. Catlin A. Loizou J· where a husband petitions for a decree of divorce on the ground of his wife's desertion is upon him to show that she deserted him without cause. 5
- 15 In the case of Dunn v. Dunn [1948] 2 All E.R. p. 822 Lord Denning had this to say on this issue at p. 823: "The legal burden throughout this case is on the husband, as petitioner, to prove that his wife deserted him without cause. To discharge that burden, he relies on the fact that he asked her to join him and she refused. That is a fact from which the Court may infer that she deserted him without cause, but it is not bound to do so. Once he proves the fact of refusal, she may seek to rebut the inference of desertion by proving that she had just cause for her refusal; and, indeed, it is usually wise for her to do so, but there is no legal burden on her to do so. Even if she does not affirmatively prove just cause, the Court has still, at the end of the case, to ask.itself: Is the legal burden discharged? Has the husband proved that she deserted him without cause?" 20 On the facts of the present caseand looking at thetotalily of the circumslances which have been established by the evidence as accepted by me, I have come to the conclusion at the end of the case that this burden has been discharged by the petitioner/husband. 25 The case of Dunn v. Dunn (supra) is also helpful on another issue as to who has the right to decide where the matrimonial home shall be and Lord Denning further down in the same page had this to say: 30 35 "I wanttosay awordalso on thepropositionthat a husband has the right to say where the home should be, for, indeed, it isthesamefallacy in another form. If that werea proposition of law it would pul a legal burden on the wife to justify her refusal, but it is not a proposition of law and I am sure Henn Collins, J., in Mansey v. Mansey did not intend it as such. It is simply a proposition of ordinary good sense arising from the fact that the husband is usually the wage-earner and has to live near his work. It is not a proposition which applies in all cases. The decision 121 A. Loizou J. Catlin τ. Catlin
(1982)where the homeshould be is a decision which affects both the parties and their children. It is their duty to decide itby agreement,by giveandtake,andnotby theimposition of the will of one over the other. Each is entitled to an equal voice in the ordering of the affairs which are their 5 common concern. Neither has a casting vote, though, to be sure, they should try so to arrange their affairs that they spend their time together as a family and not apart. If such an arrangement is frustrated by the unreasonable ness of one or the other, and this leads to a separation 10 between them,then the party who has produced the sepa ration by reason of his or her unreasonable behaviour is guilty of desertion. The situations which may arise are so various that I think it unwise to attempt any more precise test than that of unreasonableness. Views as 15 to unreasonableness may vary, and the decision is essen tially one for the trial judge with which this court should not interfere unless the conclusion is one which could not reasonably be drawn. If a wife refuses to join her husband at a place when he is ready to receive her, that 20 is, of course,afactor of great weight,but it is not necessa rily decisive". In this case I have come to the conclusion that considering the overall situation prevailing in the Island and the particular circumstances of this case, including the excuse given by the 25 respondent/wife not to join her husband at Larnaca, I find that her refusal to do so is in the circumstances unreasonable. For all the above reasons a decree nisi in favour of thepeti tioner/husband on the ground of desertion by therespondent/ wife is granted, but in the circumstances I make no order as 30 to costs. Decreenisi granted. Noorder as to costs. 122