29 Nov Property division in Cyprus after the separation or the termination of marriage
The article 22 of the Constitution of the Republic of Cyprus establishes the free right of any person who is in the appropriate age to get married and create a family according to the relevant legislation in Cyprus which applies to the religious or civil marriages.
Family law area matters are governed by various legislation in Cyprus and also by case law which has been issued from the District Family Courts and the High Court in Cyprus.
It is important to say that within the years the family law in Cyprus has been modernized with the essential assistance of Judges who adopt new approaches in family law issues while examining each case separately under it’s own circumstances.
The regulation of the property disputes is governed by the Law with no 232/1991 ( articles 13- 21) and also by the equity law rules.
The said legislation governs also the right of a spouse to claim maintenance against the other spouse after their separation or the termination of the marriage under specific circumstances which are described in detail in the said law .
The Competent Court to examine the application made by the Claimant Spouse against the Defendant Spouse for property division is the Family Court.
Article 2 provides also the definition of the terms Εstate / Property / Belongings as the immovable and movable property which was obtained before the marriage with the prospect of the marriage or any time after the marriage from any of the spouses .
Contribution means any kind of contribution of the spouses to the acquisition or the creation of the property and includes the care and the provision of the family house and also of the members of the family, the support to the Defendant’s job.
It is essential to note that the contribution constitutes the most important element in the determination of the proportion of the share of the non-registered owner of the property.
Αccording the above mentioned legislation and the relevant principles which arise from the case law , the marriage can not change the property independency of the spouse whom the property was registered before the marriage.
Specifically there is no cause of action and/or a cause of action can not be established by the claimant spouse against the defendant spouse for the property owed before the marriage.
At the current stage it is essential to note that a confusion must be avoided between cases which relate to property that was obtained by a spouse before the marriage but for the prospect of the marriage and from the other side, any property which was obtained or has been registered on the name of the spouse before the marriage regardless if the marriage followed later.
Ιn the case that any question or doubt as to the above occurs the answer gill be given by the testimony (oral or written , witnesses or written documents agreements declarations e.t.c) which will be presented and heard by the Court within the hearing.
What the claimant spouse could claim against the other after their separation is their contribution in the increase of the property of the defendant spouse.
Based on the article 14 of the said legislation , the claimant spouse in order to establish participation in the increase of the property of the defendant spouse within their marriage is obliged to fulfill the following provisions :
a)Cancellation or termination of the wedding or separation between the spouses
b)Increase of the property of the defentant spouse
c)Contribution made by the claimant spouse in the increase of the property of the defendant spouse
In other words, the initial point is the ascertainment of the existence of any property assets at the time of the marriage , secondly the ascertainment of any increase of the property and then the source of the increase relating to the contribution made by each of the spouses.
According the article 14 (2) of the said legislation the contribution in the increase of the property is presumed to be the 1/3 of the increase of the property except if a bigger or smaller contribution can be proved by the claimant or the defendant respectively.
It is clear from the legislation that the object in question which the Courts in Cyprus examine is the increase of the property and not the property as such.
The Legislation defines in a specific way in the article 14. (3) that any asset that has been obtained by the spouses through donation οr heritage or legacy can not be considered in the increase of the property.
At the current stage and based on the modern approach adopted by the Courts it is clear that the above rule can not apply in every case but according to each case’s circumstances in order to determine in the cases where the donations will be deducted or excluded from the calculation of the increase of the property of the spouse.
It is important to say specifically that financial assistance or any other help offered by the parents can not considered as a transaction which may create a cause of action which means that this financial assistance has to be deducted from the value of the property which is under examination.
According the principles that arise from the case law the Increase of the property is calculated based on the difference of the value of the property at the time it was owned comparing with the value of the property at the time of the issuance of the divorce or at the time of the separation.
Of course, the Cyprus Courts while examining each party’s contribution take in to account the financial commitments of the owner regarding the property in question as a defence in favor.
At the current stage it is essential to state that the Claimant can claim through his application at the Family Court
a) His/her contribution in money,
b) return of the property or share of the property ,
c) Registration of the property or share of the property on his/her name
Moreover , It is important to say that the Courts , while examining the claimant’s contribution take in to account the donations and the value of them that the defendant spouse might donate to the claimant spouse during the time of their marriage.
The claim for contribution is burred 3 years after the termination of the marriage and can not be assigned to a third person apart from the spouses
The Court may not award to the Claimant Spouse any amount as a contribution or can decrease the amount that he/she is entitled to receive in the following cases
a) In the case that the Claimant Spouse was convicted for murder of the other spouse
b) In the case that the Claimant Spouse was convicted for murder of the child of the other spouse
c) In the case that the Claimant Spouse was convicted for intentionally causing serious injury
d) In the case that the Claimant Spouse abandoned without reasonable cause the other spouse or failed to take care of him
e) In the case that the Claimant Spouse behaved to the other spouse or the children with immoral way.
Irene Mouzouridou
Advocate
Note: The above article does not constitute a legal advice and may not be relied upon for such purposes. Readers are recommended to take appropriate legal advice on the above subject matter.
Relevant Case law :
a)Orfanides Andreas Steliou vs Nikis Andrea Orfanide (1998) 1 A.A.Δ 179
b) Antonis Fylaktou vs Riginas Riga Louka with no 12/2001 d.t 7/8/2007
c)Nikou Biki vs Elenas Hamboulla k.a with no 25/14 d.t 11/11/2014
d) Perikleous Ioannis Charalambous vs Maria Panayiotou Egglezou (2011) 1 A.A.Δ 1015
e) Antonis Theori vs Despona Chrysostomou , Appeal with no 162, d.t 3/4/2003