Divorce (Which of the spouses might be held responsible for the divorce)

According to article 27 of the wedding law No.104(I)/2003, a wedding (either civil or religious) may be dissolved if the applicant can prove before the family court “the existence of an irretrievable breakdown of the marriage for reasons attributed to the applicant or to both of the spouses which makes the continuance of the marital relationship intolerable for the applicant.

According to article 27 (2) of Law No.104(I)/2003, a) bigamy, b) adultery, c) abandonment, d) violence according to article 3 under the Violence in the Family (Prevention and Protection of Victims) Law and e) an attempt against the life of the applicant by the respondent, are revocable presumptions for the irretrievable breakdown of the marital relationship which makes the continuance of the marital relationship intolerable for the applicant (article 27(2) and 27(3) Law No.104(I)/2003.

The definition given to violence according to article 3 under the Violence in the Family (Prevention and Protection of Victims) Law is the following:

3 .- (1) Violence, for the purposes of this Law, means any act, omission or conduct which caused physical, sexual or mental harm to any family member by another family member and includes the violence with order to achieve sexual intercourse without the consent of the victim, as well as the restriction of liberty.

 

(2) Notwithstanding the definition of the term «violence» under subsection (1) in the above sense fall and the offenses referred to in Articles 4 (2) and 5 of this Law as well as the offense referred to in Article 147 of the Criminal Code.

 

(3) Any act or behavior constituting violence, under subsections (1) and (2) of this section, or an offense under Articles 174, 175 and 177 of the Penal Code when committed in the presence of a minor member of the family, considered as violence used against the said minor if it may lead to mental injury. The act or conduct constitutes an offense punishable under subsection (4) of this Article.

 

So, the term violent, includes any act, omission or conduct which caused not only physical, but also sexual or mental harm not only to the other spouse but also to any family member by the other spouse.

 

More importantly, a violent spouse against the other spouse can be considered as violent against their child, (even if the spouse has not used any physical force against the child), in circumstances were the violence against the other spouse is committed in the presence of their child if it may lead to mental injury to the child. 

 

Hence, if the reason or reasons stated by the applicant in his application include any ground specifically mentioned in article 27 (2), then a presumption arises that the marital relationship is intolerable and no evidence is necessary to be submitted by the applicant, and the burden of prove is shifted to the respondent to prove the opposite.

 

Another ground for divorce is the continuous separation for a period of four years which constitutes an irrevocable presumption that there has been an irretrievable breakdown of the marital relationship. In that case the marriage is dissolved regardless whether the reason leading to the irretrievable breakdown is attributed solely to the applicant (article 27(3) Law No.104 (I)/2003.

 

Finally, if the spouses belong to the Greek Orthodox Church the marriage can also be dissolved for any of the reasons found in the Charter of the Holy Orthodox Church (article 111 2B of the Constitution, article 27(2) Law No.104(I)/2003).

 

According to the Cyprus case law, the court has the obligation to examine the reasons as stated by the spouses, and decide whether these are considered reasons which constitute irretrievable breakdown of the marriage and if any of them is valid, then it has the obligation to decide whether these reasons are attributed to the respondent or the applicant or both the spouses.

 

In cases, for example, where it can be proved by the evidence before the court that the other spouse, used to be aggressive and/or violent and/or she/he was creating fights between the spouses and/or was insulting the other spouse then probably, his/her behavior might be considered as the reason for the breakdown of the marriage, unless he/she can prove that the other spouse was having the same improper behavior or he/she was equally responsible for the separation based on other valid reason which has resulted to make the wedding intolerable for him/her.

In Danou v Danou [1998] continuing use of indecent words towards the husband and a demand by the wife for the latter to abandon the matrimonial home were sufficient to cause the collapse of the marriage.  This case was followed in Sofroniou v Pantazi [1998], where the applicant husband argued that the wife had demonstrated feelings of pathological jealousy during marriage and launched baseless accusations against the husband in public that he was having an affair with another woman colleague in the army.  The wife had also demonstrated an unacceptably immoral conduct towards the husband’s children from his first marriage.  The court found for the applicant, as there was irretrievable breakdown of marriage by fault which rendered the marital relationship intolerable for the husband

According to the decision MARIA SOFRONIOU v. PANTELAKI PANTAZI, (1998) 1 ΑΑΔ 805 one incident might be considered as sufficient for the irrevocable breakdown of the marriage which shall be attributed to the “guilty” spouse:

Further, irretrievable breakdown by fault of both spouses was established in the authority of Orthodoxou v Orthodoxou [1997]. It was stressed, however, that the first instance court had erred in law in examining the whole spectrum of the marital relationship prior to the breakdown, given that the court’s findings ought to be confined to the dominant incident leading up to the breakdown.