08 Jan Affidavit determining assets of spouses
Affidavit determining assets of spouses
by George Coucounis
“The affidavit disclosing the assets helps to determine the contribution between spouses”
IN the context of an application to resolve property disputes between spouses, anyone of them can apply to the Court requesting an order against the other spouse to disclose his/her assets through an affidavit. The Court sets a time limit of 15 days or any other time from the issuance of the order within which the spouse is obliged to submit an affidavit in which he/she describes in full, clearly and in a specific way the property in which he/she has any direct or indirect interest at the time of the separation or at any other time the Court directs in the order. The purpose of this procedural step is to ascertain the state of affairs in relation to the property – assets of the spouses which is the subject of sharing when resolving their property relations. In this way, the correctness of the statements of the parties is checked and the Court may, upon an application, set a date for examining them regarding the correctness of their affidavits or other information related to their property status.
The adoption of the procedure for submitting an affidavit and examining the spouse helps to resolve the property disputes of the spouses as their assets vary, the manner and the time they have been acquired, the percentage of the contribution of each spouse and in whose name it is registered. As the Supreme Court held in its judgment issued on 17.12.2020 in appeal No 7/2017, article 14A of the law that regulates the property relations of the spouses, L.232/1991, offers the possibility for interim or other measures, which, while they do not constitute determination of civil rights and obligations and do not concern the possibility of proving the dispute in question, they are helpful in the application of article 14 of the law regarding the claim for contribution in the property.
As mentioned in the judgment, the Family Court, while it issued an order against the husband to file an affidavit and he complied regarding his assets in Cyprus, he did not include his assets abroad, claiming that they were not in dispute since the Court had not jurisdiction with regard to movable or immovable property abroad. The wife filed an application for contempt of Court to punish him for refusing to comply with the order and the Court, instead of hearing her application, raised an issue whether the procedure she followed was correct or whether she should have filed an application for examining him in relation to the correctness of his affidavits. The Court considered that it had an inherent power, in view of the finding that the affidavit was “inadequate”, to order the filing of a supplementary affidavit to remedy the inadequacy. So, the Court dismissed her application for contempt and ordered the husband to file a supplementary affidavit to disclose his assets within and outside Cyprus.
An appeal was filed by both parties and the Supreme Court held that the Family Court wrongly handled the issue and set aside its judgment. The Supreme Court underlined that sub-section 3 of article 14A makes a provision that it is up to the applicant to file an application requesting the examination of the respondent concerning the correctness of his affidavit. The applicant – wife had no procedural obligation to request such an examination before proceeding with the application for contempt. Moreover, the Family Court had no power to order the respondent – husband, on its own motion invoking “inherent power”, to file a supplementary affidavit.
The Supreme Court also ruled that the dismissal by the Family Court of the application for contempt on the ground that it was premature was wrong. The applicant – wife did not choose to bypass the procedure laid down in article 14A(3), but she chose not to exercise her right to apply for the examination of the respondent – husband. It added that what the Family Court was called upon to decide was the legal issue of the husband’s obligation not to disclose his property abroad. On this basis, the Family Court should have proceeded to decide the application for contempt and not to dismiss it and order the filing of a supplementary affidavit. By doing so, the Family Court had already decided on the application for contempt which it had just dismissed, considering that the respondent – husband had such an obligation, to disclose his assets abroad. Consequently, the Supreme Court accepted both appeals, set aside the judgment of the Family Court, ordered the restoration of the application for contempt and to be tried by another judge of the Family Court and set aside the order for supplementary affidavit by the husband.