Grant of exclusive use of a family home

The Family Court has power to temporarily regulate the issue of family housing

Lack of understanding, communication and interest between spouses creates alienation that results in separation and interruption of cohabitation.

This situation affects the psychological development and health of any children, especially when there are conflicts, friction and violent episodes. If cohabitation becomes problematic and impossible, one of the two spouses will have to leave.

However, sometimes, neither of them agrees to leave the marital residence for the benefit of the other, presenting as an argument their contribution to its acquisition or even financial inability to find housing elsewhere.

The law

A temporary solution to this problem until the property relationships of the spouses are regulated, can be given by the Family Court, within the framework of the authority granted to it by article 17(1) and 17B of Law 23/1990 as amended by N .2(I)/2023.

Specifically, it is provided that, in compliance with the provisions of article 32 of the Courts Law, the Family Court may, ex officio or upon application by one of the spouses or both jointly, issue, within a reasonable period of time, an interim order, with which the relationships of the spouses and parents and children are regulated regarding parental care, alimony, family housing and the use of movable property.

It is understood that the application submitted for the issuance of an interim order may include more than one issue, for their temporary regulation, and the same judge deals with issues between the same parties.

Decision of the Court of Appeal

The Court of Appeal, in the unanimous decision for case E35/2022 issued by Judge M. Toumazi, dated December 20, 2023, examined the complaints of a husband against whom the Family Court issued an interim order which became absolute, granting the exclusive use of the family home to the wife and ordered him to leave it within 15 days of service of the order, and an interim order prohibiting him from entering the family home.

This is a case of estranged spouses with two minor children and the husband claimed, among other things, that the Family Court wrongly did not take into account the fact that he maintains a car repair shop in the matrimonial home, which is his only job, as well as that the coexistence of the spouses in the same space, was possible as long as he could live in the basement.

Reasoning

The Court of Appeal with reference to article 17(1)(2) of Law 23/90 and case law of Vounou v. Vounou indicated that the guiding principle in the exercise of the powers of the Family Court is equity, a concept connected with justice.

What the legislator sought with the provisions of Article 17 was to limit, to the extent possible, the adverse effects on the family from the termination of cohabitation. He added that this article enables the court to grant the use of the family home, even to a spouse who is not the owner.

The Court of Appeal agreed that the Family Court correctly explained that it would not evaluate the testimony for the purpose of reaching findings, a function of the merits of the case.

The wife by her affidavit had succeeded in proving that there was a visible possibility of success in the sense of an arguable case and it was admitted that serious incidents were happening between the parties and the wife had lodged a complaint with the police, with criminal cases pending against the husband.

The Court of Appeal emphasised that one of the criteria set by Article 17(1) is the reasons for equity and the best interests of the children, whose place of residence was that of the mother based on an interim order.

The Family Court rightly ruled that the adverse effects on the psychological state of the wife and the children, as well as the removal of her and the children from their home where they are keeping their personal belongings, could not be valued in money, nor be remedied at a later stage with the award of damages and dismissed the husband’s appeal.

George Coucounis is a lawyer specialising in Immovable Property Law, based in Larnaca. E-mail: [email protected], tel: 24818288