Article in the Cyprus Journal of Wealth Management
Total Page：16
File Type：pdf, Size：1020Kb
| 118 | ESTATE PLANNING & SUCCESSION | 119 | The distribution of assets is, in my opinion, one of the most CASE STUDY X (husband) and Y (wife) started their co- complicated aspects habitation in January 1998, got engaged in April of the same year and got married of family law in Cyprus in July 2000. In October 2010, they moved into their matrimonial home. They sep- arated in May 2011 and their marriage the property of the spouse at the time of the cele- It will all depend on the facts and circumstances of was dissolved in 2013. The matrimonial bration of the marriage and at the time of the sep- the particular case, the testimonies of the witnesses home, which is registered in Y’s name, In Cyprus, aration in order to determine the increase, if any. who may testify before the Court in a potential was reconstructed by X’s own personal However, if there is no increase or the property of claim, as well as on the wording of the agreement. efforts and by entering into several loans. legislation Some of the loans were joint with Y. X the spouse has decreased, then Article 14 does not In particular, the parties cannot present evidence of repaid most of the loans. The plot of land does not apply and the other spouse cannot claim anything. their own subjective intentions, given that the gen- on which the house in dispute was built If an ex-spouse remarries, they do not lose their eral rule is that the intention of the parties is to be was purchased in August 1998; half was speciFically right to the property they had with their spouse, judged objectively. Assuming that the parties have purchased by Y’s father and the remain- ing half was purchased by the parties, refer to as long as they can successfully prove during signed a legally binding agreement, their rights but the plot of land was registered in Y’s court proceedings that the preconditions briefly shall be deemed protected by a formal document, name. The purchase price of the whole prenuptial described above have been met. It is important to the breach of which will have legal consequences plot of land was initially paid by Y’s father, mention that “property” does not only refer to the for the party in default, i.e. damages and/or specific but the parties subsequently took out agreements a loan and the amount of the loan was property acquired during the marriage, but also to performance. It may also be relied upon as proof paid to Y’s father. Y refused to pay X any and, any property which a spouse acquired before the that the other party/spouse duly and willingly amount of money for his contribution in marriage “with the prospect of a marriage”. For agreed not to request any contribution to the prop- reconstructing the matrimonial home. therefore, example, when the parties first cohabit and then erty stated within the agreement. We represented X in his property dis- pute with Y before the Family Court of does not get engaged. Nicosia. Having collected the necessary Any claim in relation to property disputes between How can you protect your assets in a divorce material, X appointed a property valuer to ofFIcially spouses must be brought within three years of the settlement? evaluate the disputed matrimonial home. dissolution or nullification of the marriage and any Assets can be protected by means of an agreement Subsequently, an application under the recognize Matrimonial Property Law was filed with claims cannot be inherited or assigned unless they to settle property disputes, pursuant to which any the Family Court of Nicosia, pursuant to or give have been contractually recognized or if a claim has assets obtained before the marriage are the property which X claimed the part of the increase any special already been served. of the party that acquired them. As such, they will of the disputed matrimonial home which fall outside of the pool of assets to be distributed resulted from his contribution. Y filed a defence, denying the substan- status to What rights to the estate do children from pre- among the parties. The parties may further decide tive allegations made by X. Her line of vious marriages have? on the distribution of property acquired jointly defence was that the plot of land was them The Matrimonial Property Law only governs during the marriage. It is worth mentioning that if purchased by her and her father before property disputes between spouses who are sep- the parties settle their property disputes by written the parties’ engagement and without the applicant having contributed to the arated or ex-spouses and, as such, does not grant agreement, the distribution of the matrimonial one third of the increase. This may be acquisition. She further alleged that the children any rights to matrimonial property upon assets no longer fall within the ambit of the Mat- rebutted if the applicant can prove, house was reconstructed by her father’s a separation or divorce. Pursuant to the Wills and rimonial Property Law and the Family Court but personal efforts and not by those of X. on the balance of probabilities, that Succession Law, Cap.195, children are legal heirs within the jurisdiction of the District Court. Oth- The applicant, an employee from the their contribution was more than one Land Registry of Nicosia and two other of their parents and have rights only to property erwise, movable and immovable property obtained third (Article 14(2) of the Matrimo- bank employees testified before the registered in their parents’ names. Nor do they by either spouse before the marriage and with the nial Property Law). If, for example, Family Court during trial and in support inherit any rights to issue a claim pursuant to the prospect of marriage, or any time after the marriage of the applicant’s case. Our valuer’s Going the wife can prove on the balance of Matrimonial Property Law, unless such a right has was formed, is divided in accordance with the Mat- evaluation was finally accepted by Y. To probabilities that it is was her family support her case, Y gave her own testi- been expressly recognised by contract or a claim rimonial Property Law. Parties normally resort to who paid for the house and that the mony before the Family Court and further hat rights to the estate does a former has already been served. court with an application for an order to that effect. husband did not contribute to its called her father and an employee of a spouse have when he/she remarries? private construction company as wit- Separate acquisition/value increase, then she nesses. PropertyW disputes between spouses are Is a prenuptial agreement legally enforceable in What other common problems arise in estate can rebut the one-third presumption The Family Court accepted our position regulated by the Matrimonial Prop- Cyprus? If not, are there any exceptions? planning in divorce cases? and the other party may not have any and decided that there was a dissolution erty Law of 1991, Law No.232/91. In Cyprus, legislation does not specifically refer The distribution of assets is, in my opinion, one claim to the house. of the marriage, the matrimonial home When a marriage is dissolved or nulli- to prenuptial agreements and, therefore, does not of the most complicated aspects of family law in was built on land which was actually Under Article 14 of the said Law, fied or when the spouses separate and officially recognize or give any special status to Cyprus. Some of the problems that we common- bought before the marriage with the participation in the increase in prop- prospect of marriage, there was an one spouse’s property has increased them. However, if such an agreement is made with ly encounter in such cases include the difficulty erty must be sought and the claim increase of value in the disputed prop- during the course of the marriage, the the free consent of the parties – who are competent of one spouse compensating the other for their erty (the matrimonial home) and that X Way s must be directed against the spouse or contributed in the increase of the prop- other spouse may file an application to contract for a lawful consideration and with a contribution to the matrimonial home when co- the ex-spouse, and not against third to the Family Court and request part lawful object – and is otherwise not void, it will habitation is no longer an option, when one of the erty with money as well as through his parties (the case of P. Gregoriou v D. personal efforts. Therefore, the Judge of the increase which resulted from be valid and binding just like any other contract, two spouses refuses to leave the matrimonial home Gregoriou (2001) 1 JSC 1461 is rel- decided that all the preconditions of Arti- their own contribution, considering under the Cyprus Contract Law Cap. 149. That which is registered in the name of the other spouse, evant). It is important to note that it cle 14(1) of the Law No. 232/91 had been Marilena Miltiadou, Senior Associate at Chrysostomides, that they can prove they contributed said, the parties must have had the intention to where there is no evidence proving the contribu- met, and issued a judgement in favour of explains the rights of ex-spouses to an estate, whether a is the increase of the property and not to the increase. In the case when one create legal relations, which is more difficult to tion of one spouse in the creation of the property X for the amount of €115,000 plus legal prenuptial agreement is enforceable, how to protect your the property itself that is the subject interest, as well as ordering legal costs party can prove the increase but not prove, because in domestic agreements of this type and when there are outstanding loans during the assets in a divorce procedure and other common problems in favour of X and against Y.