Family Law in Cyprus
DIVORCE
Can I divorce in Cyprus?
Under article 11 of law 23/1990, a married person can apply to the Cypriot Family Courts for divorce if either he or she, or his or her spouse have been living in Cyprus for three months before applying to the court. This applies even if the couple were not married in Cyprus or never lived in Cyprus as a couple, and even if neither of the spouses have there permanent residence in Cyprus or have Cypriot citizenship. On the other hand, a married person cannot apply to the Cypriot Family Courts for divorce even if he or she is a Cypriot national or the couple were married in Cyprus, if neither of the spouses have been living in Cyprus for at least three months before the application for divorce was filed.
The provisions of law 23/1990, will not apply however in case the Brussels II bis regulation applies (regulation 2201/2003), that is in case your spouse is habitually resident in an EU member state. In such a case, the Cypriot Court will have jurisdiction to issue a divorce only in case the spouses’ common habitual residence was Cyprus and the plaintiff spouse still resides in Cyprus, or the plaintiff spouse has been residing in Cyprus for one year prior to the filing of the application or the plaintiff spouse is a Cypriot national and has been residing in Cyprus for at least 6 months before the application is filed.
What are the grounds of divorce?
Cyprus’s divorce law is unnecessarily complicated in the sense that there are different grounds of divorce for different sections of the population depending on their domicile, faith or denomination or whether the marriage ceremony was a civil or religious one.
However, there are a number of grounds for divorce that apply to all marriages and all applicants, notably the irretrievable breakdown of the marriage due to a reason that can be attributed to the defendant spouse and makes marital cohabitation intolerable to the applicant; and the four-year separation ground which allows for a divorce to be issued irrespective of the reasons that led to marital breakdown in case the spouses have been separated for four years. In fact, virtually all divorces in Cyprus are issued for one of these two grounds of divorce, making all other grounds for divorce, which only apply to certain sections of the population, irrelevant.
How can I get divorced?
A divorce can only be issued by the Family Court upon an application of one of the spouses. The applicant spouse has to appear before the court to give testimony in order to satisfy the court that the ground of divorce relied upon in the application is made out. In reality the actual procedure is to most cases merely formal, and the court will readily issue the divorce after a short uncontested testimony of the applicant confirming that the marriage has broken down and giving a very shot explanation as to what the applicant believes led to such breakdown.
The reason that may lead to the breakdown of the marriage does not need to involve any degree of culpability on behalf of any of the spouses. A no fault divorce can therefore be issued under this ground, for example because of the incompatibility of the personalities of the spouses.
How long does it take to issue a divorce in Cyprus?
In case of an uncontested application of divorce with respect to a marriage celebrated in a civil ceremony, a divorce may be issued in about six weeks. If the marriage was solemnized in the Greek Orthodox or Armenian Orthodox Churches, then the law requires that a notification be delivered to the Church before a divorce petition may be filed. This increases the time needed to get an uncontested divorce to about four to five months. In case the divorce is contested however, it may take anything up to 18 to 24 months before the court issues a divorce.
Can the divorce be appealed and what is the effect of an appeal?
In case of a contested divorce issued after a hearing, the decision of the court may be appealed. In such a case the divorce decision is suspended until the end of the appeal.
CHILDREN - PARENTAL CARE AND RESIDENCE
What are the main provisions in Cyprus regulating the parent / child relationship?
Cyprus law provides that in the case of a child born during the marriage, both parents have parental rights over the child which they must exercise together. In case of disagreement between the parents, the matter may be resolved by the court. Each parent however may make decisions relating to the day to day care of the child on their own initiative without requiring the consent of the other parent. The same applies to cases where an urgent decision has to be made with regard to the child such as an urgent medically procedure. In effect, both parents must decide together with respect to serious matters relating to the person of the child, such as matters relating to the child’s education, the issuing of passports or other travel documents, nationality, religion, country and place of residence or health, as well as the management of the child’s property or representation of the child before the courts or other authorities. Otherwise each parent is free to make day to day on their own decisions regarding the child.
In the case of a child born out of marriage then the mother has sole parental care until the child is recognized by the biological father, either voluntarily or under a court order, in which case both parents acquire parental care of the child and the same principle applies as in the case of a child born within the marriage.
What happens if the parents are separated?
The law provides that in case the parents are divorced or separated, then the exercise of the parental care of the child has will be determined by a decision of the family court. Until such a decision is issued, the parents continue to exercise parental care jointly. The court may divide parental care among the two parents or may provide that parental care will continue to be exercised by both parents jointly and the court will provide as to the child’s place of residence with either or both parents.
The most usual order issued by the court is to grant the day to day care of the child to the parent with whom the child is to reside and provide that all other aspects of parental care is exercised jointly by the two parents. The parent who does not live with the child will have a right of access with the child, including overnight stays. The courts however are increasingly readier to issue orders of going custody where the residence of the child is divided between the two parents (more usually in a 70 to 30 basis rather than a 50 - 50 basis) and it is not uncommon for the courts to grant custody for the father or to order overnight stays with the parent with whom the child decides for very young children and sometimes even newborns.
CHILDREN – CHILD ABDUCTION AND RELOCATION
Will I be allowed to relocate with my child to another country if the non-custodial parent of the child objects?
Cypriot family courts readily allow a parent who either has been awarded the day to day care of the child or is best suited to be awarded such day to day care, to relocate to another country, provided she or she can show that the relocation is well planned, and the court is satisfied that proper arrangements have been made for the settlement and care of the child in the country of relocation. The downside however is that relocation cases may be hotly contested and it usually takes more than a year before a final judgment permitting relocation will be issued. To a great extend the delay is caused by the long time it takes for the welfare services to provide the required welfare report, especially if it is required to obtain information from the welfare services of the country of relocation.
Am I allowed to travel overseas with my child?
It is a criminal offence for a parent to remove a child from Cyprus without the consent of the other parent, even if this is done as a part of a short vacation abroad. The immigration officers at the Cypriot airports are increasingly more strict in requiring proof that the other parent has given their consent for the child travelling abroad and this is the case irrespective of whether the parents are still living together as a couple. A parent traveling abroad with a minor child without being accompanied by the other parent should therefore ensure to have with them a written consent signed by the other parent certified either by a court registrar or a certifying officer, otherwise it is possible that they shall not be allowed to travel.
What about the so-called stop list?
The family courts readily issue a so-called “stop list” order that is an order prohibiting a parent from removing a child from the jurisdiction even for a vacation and placing the name of the child on the immigration stop list under which the immigration officers at the Cyprus ports and airports will not allow the child to go through passport control and leave the country. Such orders are issued as of course on an ex parte application of the one parent that is without the other parent receiving notification of the proceedings until after the order is issued. Such orders may be contested, however such proceedings although in theory are supposed to be summary proceedings, tend to be protracted over several months. On the other hand, given that the immigration officers are now unwilling to allow a child to leave the country without the consent of the other party, even if such an order is not issued, it will still be illegal and probably not possible for the child to travel. However in case a parent is afraid that the other parent intends to leave Cyprus without the child intending to relocate abroad, it is still advisable for an order of the court to be obtained, as this will strengthen the case of the left behind parent if child abduction or custody proceedings need to be taken abroad as well as because at the height of the tourist reason immigration officer tend to be less strict in controlling the travel of children abroad especially if the children have foreign names and foreign passports.
How can I protect myself from the other parent abducting the child by taking the child and settling with the child abroad?
Although a “stop list” order will essentially make it impossible for a parent to remove the child from Cyprus through Cyprus’s official airports, it is still possible for a parent to abduct a child through the illegal airport in Tymbou at the Turkish Occupied territory of Cyprus. In fact, almost all child abductions where the child is removed from the island by one parent without the consent of the other, the child is flown out of Cyprus from the illegal Tymbou airport. However even in Tymbou, no-one is allowed to board an airplane to leave the island unless they hold a valid passport. So, by far the safer method of preventing a child abduction in case there is a actual risk, is to hold the passports of the child. A parent may either physically take possession of the passports directly if the parent has access to them, otherwise in many occasions it is wiser to obtain a court order from the court requiring the other parent to deliver the passports or other travel documents to the applicant parent, one of the party’s lawyers or the court registrar for safe keeping.
What happens if the other parent illegally removes the child from the Cyprus and relocates to another country?
Removing a child from Cyprus to another country is a criminal offence under Cyprus law. The stay behind parent should therefore report the case to the police which will result in a local, international and European arrest warrant being issued against the abducting parent. Furthermore, in case the country where the child has been removed to is a member of the Hague Convention on the Civil Aspects of International Child Abduction then an application should be filed to the Ministry of Justice of Cyprus so that proceedings for return may be started in the country where the child has been abducted. Although the Ministry of Justice advices parents that they may complete and file the application form on their own without the need to retain a lawyer, obtaining the services of an experienced Hague Convention lawyer either in Cyprus or in the country of relocation is usually necessary. Child abductions cases usually raise difficult issues which a parent is not allowed. In fact, very few lawyers in every jurisdiction are experienced Hague Convention lawyers who can handle abduction cases and parents should be careful to ensure that they receive advise and they do so from a lawyer specializing in the field of abductions.
What if the child is removed to a non Hague Convention country?
If the child is removed to a country that is not a member of the Hague Convention then the options of the parent to obtain a return of the child are more limited. It is imperative in such a cases that the parent gets the advice of a lawyer with an extensive experience in such a cases so that they can explore together all available options to try to ensure a return of the child.
PATERNITY
Who is a parent of the child?
Cyprus law provides that the woman that gives birth to the child is the mother of the child unless the child was born in a surrogacy arrangement whereby special provisions apply.
In child is born while the mother is married or within 302 days from the dissolution or annulment of the marriage, then the father of the child is deemed to be the husband of former husband of the mother. This is described in the law as the presumption of paternity (though the term is more likely a misnomer - the law establishes legal paternity rather than presumes a fact).
Is the so-called presumption of paternity rebuttable?
Indeed, legal paternity in case the child is born within the marriage can be rebutted in case an application is filed to the family court for the presumption to be rebutted and the case is made that the “presumed” legal father, that is the husband or former husband of the mother, is not indeed the biological father of the child. The law however provides severe limitation as to who can contest paternity and sets strict time frames within which an application to dispute paternity may be filed. An application to dispute paternity may only be filed by the mother, the child (personally if an adult or through it representative while a minor) or the husband (or his parents in case he has died). Notably a man claiming paternity is not allowed to file an application to dispute paternity so that he can claim the paternity of the child. Furthermore, the law provides that the application must be filed by the mother within one year of birth of the child or five years if there are good grounds for not proceeding earlier, one year for the father from the date he is informed of the birth and the facts which suggest that his is not the father, and for the child after the child becomes an adult. A provision in the law that the presumed father ay not file an application after the child’s fifth birthday even if the presumed father was not informed of the child’s birth or of the facts suggesting that he is not the father has been deemed unconstitutional.
In case the so call presumption is rebutted by a decision of the family court then the husband of former husband no longer has parental care rights over the child and the mother becomes the sole bearer of parental care.
What if the child is born outside marriage of the paternity of a child born within the marriage has been rebutted?
In case the child is born outside marriage or paternity of a child born within the marriage has been rebutted, then the actual biological father of the child will not have parental rights for the child until he is recognized as the child’s father. The recognition can take place voluntarily by the father and mother by an affidavit sworn before the court registrar (or for the mother before a consular officer of the Republic overseas). If there is no voluntary recognition, then paternity may be recognized though a judgment of the family court issued upon an application filed by the biological father, the mother or the child (either personally or if a minor through the child’s representative). The law includes strict time limits within which the application for paternity may be filed, five years from the child’s birth, in the case of the mother, three years from the time the mother refuses to consent to voluntary recognition in the case of the father, and three years from the time the child becomes an adult, in the case of the child. The time limit for the child may be extended in case the child is not aware of the facts that suggest who is his or her biological father in which case the child may file the application within three years he or she becomes aware of these facts.
CHILD MAINTENANCE
What about child maintenance?
Law 216/90 provides that each parent has an obligation to contribute toward the expenses of a child according to their means. This obligation exists even if the child has property and the parents may not use such property of the child to cover expenses of the child without the consent of the court.
In case there is a dispute as to the obligation of either parent to pay for the child’s expenses then an application may be made to the court which will issued a maintenance order. Such an application is invariably made only upon separation of the parents where the parent with whom the child resided will ask for a maintenance order in the form of monthly payments to be issued ordering the other parent to pay the resident parent a monthly amount as his or her contribution to the child’s expenses. The family will usually specify a monthly amount to be paid to the resident parent by the non-resident parent. The order however may take other forms, most notably it may order the non-resident parent to pay directly for specific expenses of the child such as all or a specific percentage of the child’s School fees, medical expenses, private lessons and activities and so forth.
Does a parent have an obligation to pay maintenance for an adult child?
Law 216/90 provides that the obligation of a parent to maintain a child may continue after the child’s 18th birthday if the child is not in a position to cover it living expenses through its own means (including though the use of its property). The law specifically provides that a child may not be in a position to cover its expenses in case the continues its studies for example in school, college, university or professional training or while the child is serving his compulsory military service. A maintenance order issued while the child is a minor however will cease on the child’s eighteenth birthday and a fresh application has to be made to the court by the child (not the parent) for a fresh maintenance order after the child becomes of age.
MATRIMONIAL PROPERTY RIGHTS (ANCILLARY RELIEF OR MATRIMONIAL PROPERTY DIVISION)
What property rights do spouses have against the other spouse in case of separation?
Cyprus law provides that marriage does not affect the right of each spouse to hold property nor does the marriage create by and on itself any rights over the property of the other spouse including over property acquired by the other spouse during the marriage. The law however provides that in case spouses are separated, then each spouse may claim his contribution in the acquisition of property by the other spouse during the marriage or before the marriage with the prospect of such marriage.
The law provides that such contribution may be direct and indirect. The law further provides that looking after the family home or the children of the marriage does constitute contribution and a stay at home mother will be deemed to have contributed in the property acquired by the other spouse during the marriage. The law furthermore provides that there is a rebuttable presumption that each spouse has contributed by one third to the acquisition of property by the other spouse during the marriage.
How strong is the one third presumption of contribution to the acquisition of property by the other spouse?
The presumption of one third contribution is rebuttable, that is the court will take it as a given that there is a one third contribution unless it is proven that the contribution was smaller or larger than one third. Greater of lesser contribution must be proven in a “positive way” that is by the presentation of evidence which will allow the court to make a positive finding of lesser or greater contribution. In many cases this is not possible either because the evidence is no longer available (for example bank statements have been lost or receipts were not kept) or because by its very nature, this contribution cannot be quantified (for example in the case of a stay at home mother who also assists the father in his business, keeps the books without being payed or advices the father as to his business decisions. In such a case the presumption will not be rebutted and therefore the court will make an award for the benefit of the applicant on the basis of a one third contribution to the marital property acquired by the other spouse.
Is any property, such as property acquired by a spouse as a gift or inheritance, excluded from a claim?
The law provides that property acquired by a spouse as a gift or inheritance or from the disposition of property acquired in this way, is not considered to be part of the property acquired by the spouse during the marriage and is therefore excluded from any claim by the other spouse.
What about gifts made by one spouse to the other during the marriage? Is the spouse who received such gifts obliged to return them?
A spouse who receives gifts from the other spouse becomes the absolute owner of this property and the spouse who made the gift does not have a right to demand that they may be returned. In case however a spouse has a claim against the other spouse with regard to property acquired by the other spouse within the marriage then the court will deduct from the claim the value of any property the claimant spouse received as a gift from the other spouse.
How is the claim in the other spouse’s property satisfied? Is it through a many award or an order for the transfer of property?
Under the law the court may either order that the defendant spouse transfer to the claimant specific property to the satisfaction of the claimant’s claim or issue a judgment for a money award. In practice however, it is very rare for a Cypriot family court to order the transfer of specific property. In practically all cases, the courts prefer to give a judgement for money award. A plaintiff however may argue that it would be in the plaintiffs interest if the court proceeds with an order for direct transfer of property, in case for example there has been an extraordinary increase in the value of the property since separation which would make it unfair for the applicant if his or her rights were satisfied with a money award which, according to the Family Secondary Court case law will be based on the value of the property at the time of separation.
ALIMONY
Is a spouse obliged to pay the other spouse alimony in case of separation?
Law 232/1991 provides that each spouse has an obligation to maintain the other spouse according to their means. Upon separation, therefore the better off spouse may in theory be obliged to pay alimony to the other spouse. In practice the family courts expect each spouse to take all necessary steps to ensure that he or she may will be able to maintain him or herself. The court therefore will expect the spouses to seek reasonable employment (based on their status, work experience and qualifications) in order to maintain themselves and it is rare for the courts to order for the payment of alimony. Alimony however is routinely ordered in cases where the husband is affluent has high income and the wife was not employed during the marriage and, either due to her age or lack of qualifications or recent work experience is not in a position to obtain reasonable employment to cover her personal expenses.
The law provides that alimony may continue after divorce notably if the claimant spouse is not in a position to find suitable employment to maintain him or herself because of the state of his or her age or health, or if the spouse is not in a position to find suitable employment for other reasons or needs to obtain vocational training before returning to the work market, in the latter case however the obligation to pay alimony may only continue for unto three years after divorce.
CROSS-BORDER MATRIMONIAL PROPERTY CASES
What if the parties do not reside in Cyprus but there is matrimonial property in Cyprus?
The Cyprus family courts have jurisdiction to hear cases where even though none of the parties reside or ever resided in Cyprus and therefore do not meet the three months residence general condition for Cyprus family courts to obtain jurisdiction, any property acquired by any of the spouses exists in Cyprus. Such property may be immovable or movable. It includes therefore both property in land (plots of lands, houses, offices, apartments and so on) or any other property such as shares in a local company, bank accounts, household furniture, works of art and so on.
Furthermore, in such cases, where none of the parties reside in Cyprus and are domiciled in Cyprus, Cyprus courts may apply the law of another jurisdiction to which the spouses have closer links, such as the jurisdiction where the parties have their domicile. In many cases such law may be more preferable to the applicant spouse, if for example the law of the country of domicile provides that all matrimonial property should be shared equally between the spouses upon divorce.
In many such cases, applications are filed in Cyprus as an ancillary to applications filed in other jurisdictions with the main application being maintained in the country where the parties are domiciled or their country of nationality. In such cases, the Cypriot proceedings serve the purpose or preserving the assets located in Cyprus preventing the defendant spouse from dissipating the assets.