α C.L.R. 0984-September 28 [PIKIS, J.] NADIN K.YPREOS, <'Petitioner, v. COSTAKIS KYPREOS, Respondent'. '(Matrimonial Petition 'No.'35/83). •Practice—Discontinuance 'of .proceedings—Principles fapplicable—Dis'coniinuance of 'Matrimonial Petition—Regulate'd'by ^Or'de'r 26 'ofthe old English Rules of the Supreme Court'whichiis'itpplicab'le by virtue<ofrule 102 of our Matrimonial Causes Rules. '5 10 This was a,petition by the wife for the dissolution'of a'civil marriage on the ground of desertion. By his answer the "res pondent raised a .preliminary issue whereby he 'questioned 'the legitimacy of the proceedings on the ground that *the'marriage between the parties was dissolved by a valid order'ofihe ecclesiastical Court-made on the 18th May, Ί982. Before the'com pletion of the -hearing of the preliminary -issue the/petitioner signified her wish to withdraw the.petition, a course 'opposed by the respondent. On the application for withdrawal: 15 20 25 Held, that withdrawal of a matrimonial petition is, by virtue of rule 102 of our Matrimonial Causes Rules, regulated by the provisions of Order 26"of the old English Rules of the Supreme Court; lhat after a formal step is taken, subsequent to defence, signifying unequivocally a decision to pursue litigation, the leave of the Court is required before a party is allowed to discontinue liiigation;that the primary object ofthe rule requiring! eave is to empower the Court to refuse leave whenever it is sought thereby to gain a tactical advantage; that a party will not be'ordinarily compelled to litigate against his will and the Courtwill normally allow a party to discontinue provided that no injustice will 565 Kypreos v. Kyprcos
(1984)be caused lo the defendant; that there isno suggestion that the petitioner seeks, by withdrawing the proceedings, to secure any collateral or other advantage, or that any injustice is likely to be occasioned to the respondent; and that, accordingly. leave to withdraw the petition must be granted. 5 Petition discontinued. Cases referred to: CovellMatthews& Partners v. French Wools Ltd. [1977] 2 All E.R. 591 ar p.
- Matrimonial Petition. Wife's petition for dissolution of marriage on the ground of desertion. E. Michaelides, for the petitioner. P. AnastassiadeSy for the respondent. 10 Cur. adv. vult. 15 Pikiis J. read the following judgment. This is a petition for the dissolution of the civil marriage of the petitioner and respondent, founded on desertion. By his answer the respondent questioned the legitimacy of the proceedings, contending the marriage between the parties was dissolved by a valid order 20 of the ecclesiastical Court made on 18.5.
- Consequently, the maiital tie was severed and the parties were restored to their premarital status. Subject to the above preliminaiy objection bearing on the justiciability of the proceedings, the petition is opposed and the charge of desertion denied. 25 Before hearing the case ofthe petitioner, it wasjudged appropriate, with the consent of the parties, to set down the preliminary objection, to the justiciability of the petition, for consideration and decision. What was at issue was the effect of the ecclesiastical decree of divorce in view of the history of the 30 marriage of the parties. The respondent isa Cypriot, a member of the Greek-Orthodox Church, while the petitioner is a foreign subject, belonging to a different Christian religion. At the start, the parties contracted a civil marriage; thereafter, they were ecclesiastically married at a Greek-Orthodox church. 35 The preliminary issue involved consideration of the proviso to para, (c) of Article 22.2 of the Constitution. Before the completion of the hearing of the preliminary issue, petitionei 566 1 C.L.R. Kypreos v. Kjpreos Pikls J signified her wish to withdraw the petition, a course opposed by the respondent. It was argued on his behalf that having regard to the advanced stage of the proceedings, leave was required to withdraw the proceedings and such ought to be 5 refused in order to make possible litigation of the preliminary matter. Learned counsel who appeared on behalf of Mr.· Anastassiades for the respondent, Mr. Mavrantonis, submitted, the mattei is legulated by the provisions of r.102 of the Matrimonial Causes Rules that makes applicable, in respect of with10 drawal of matrimonial proceedings, the pertinent provisions of the English Matrimonial Causes Rules 1957, notably r. 82, in the absence of specific provisions in our Rules. Now. r. 82 adopts in turn, subject to necessary modifications, the relevant Rules of Court applicable to civil proceedings, notably 15 Ord.
- Wc arc referring, of course, to the old Rules of the Supreme Couit. Ord. 15ofthe Cyprus Civil Procedure Rules, it may be noted, is modelled on the provisions of Ord.
- 1 take it to be settled that the law and practice, applicable to matrimonial proceedings under s. 19(b)* of the Courts of 20 Justice Law—14/60, is the matrimonial law and practice in foice before 1960, that is, the law and practice, then applicable in England. Therefore, the submission made on behalf of the respondent, that withdrawal of a matrimonial petition is regulated by the provisions of Ord. 26 of the old English Rules 25 of the Supreme Court, is sound. The Rule conditioning withdrawal of proceedings after a certain stage, that is, after a formal step is taken with a view to continuing the litigation after the filing of defence, replaced the common law rule to claim a nonsuit, and the rule of equity 30 entitling a party to dismiss his bill at his own option that permitted the plaintiff to discontinue proceedings at any stage before judgment. The object of the new rule is to ensure no abuse is made of the judicial process. A litigant will not be allowed to withdraw an action in anticipation of the outcome 35 of the proceedings. After a formal step is taken, subsequent to defence, signifying unequivocally a decision to pursue litigation,theleaveof the Courtisrequired before a party isallowed Jurisdiction has now been transferred to the District Court by virtue of Laws 29/83 and 51/
- 567 Pikis ,!: Kyprcos \..Kyprcos <1984>; to discontinue, litigation*.. A party will not· ordinarily be, compelled to. litigate against his will. This is not the object ofthe rule requiring leave. The pri mary purpose of the rule is.to empower the Court,to. refuse; leave, whenever,it.is sought.thereby, to gain,a,tactical.advantage. Graham, J., 1,believe with respect, put the matter in a nutshell: when, he said;, 5/ "The principles to be culled from these cases are, in my judgment; that the Court will, normally at any rate, allow a plaintiff1' to. discontinue, if he wants to, provided'no 10 injustice-will be caused to thedefendant. Itis not desirable that a plaintiff, should be compelled to litigate against his wiW'—Covell Matthews & Partners v. French lVonli Ltd: [1977],2 All E.R. 591 at p. 594, letters A-B. There-is no suggestion in the instant case that.the petiti< ικτ 15 seeks, by withdrawing the proceedings, to secure any colkitaul or other advantage, or thatanyinjustice is likely to beoccasion.;-.!. to the respondent. Respondent opposed theproceedings solvl). in order to make possible litigation ofthe preliminary objcciiun to the viability, of the proceedings and thereby secure a judicial 20 pronouncement as to legal effect of the ecclesiastical divorco. Discontinuance of the piesent proceedings will in no way picjudice.his right; if any, to seek a declaration on the implications upon his status ofthe ecclesiastical decree or, in fact, any other remedy to which he may be entitled. 25 Hence, leave to discontinue is hereby granted. Bearing in mind.the extraordinary rule with regard to costs in matrimonial proceedings applicable by iulcs-94-96 of the-Matrimonial. Causes Rules, 1 shall make no order as to costs. Petition discontinued with 30 no order as t<> costs. * Sec, The Annual Practice 1958, p. 592, 568;