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Matrimonial Property Dispute: The Right Of The Surviving Spouse To Claim Posthumously His/her Contribution To The Increase In His/her Deceased Spouse’s Property – Family Law


Legal Framework

The legal framework of property disputes between spouses and
partners, is regulated by the Law Regulating Property Affairs of
1991 (No. 232/91). The Family Courts have exclusive jurisdiction to
deal with and hear such disputes that relate to property affairs
between spouses.

The issue of resolving property disputes between spouses lies
within Article 14 of the Law No.232/1991, which reads as
follows:

14. (1) If the marriage has been dissolved or annulled
or if the spouses are separated and the property of the one spouse
has been increased after the marriage, the other spouse, having
contributed in any way to the said increase, is entitled to file an
action before the court and claim such part of the increase
resulting from his/her contribution.

Article 2 of the Law No. 232/91 defines property as any movable
or immovable property that has been acquired before the marriage
with the prospect of marriage or at any time after marriage takes
place, from any of the spouses.

In addition, Article 15 of the Law No. 232/91 refers to the
limitation period of the claim and specifically states that
The claim that arise from article 14 (a) shall lapse
three years after the dissolution or annulment of the marriage, (b)
shall not, on the case of death, arise in heirs of the deceased
spouse (c) shall not be assigned or inherited unless it has been
contractually recognised or a claim has been served
“.

The Supreme Court recently examined the current practice as to
the right of a surviving spouse to claim posthumously his/her
contribution to the increase in his/her deceased spouse’s
property, regardless of his/her rights under the Law No.
232/91.

Prokopiou v Giagkou and Pilidou as Administrators of
the property of the deceased Karalouka Appeal no.
22/2020

Background

Three days before the lapse of three years from the dissolution
of her marriage the Appellant filed an application with the Family
Court of First Instance, based on Article 14 of Law 232/1991 and
the application was directed against the administrators of her
ex-husband’s estate, since he had passed away before the
submission of the application.

The First Instance Family Court

The Family Court of First Instance, ex officio, raised an issue
of its jurisdiction to conclude that the application did not
concern a property dispute between spouses and that ” The
claim of article 14 of the Law does not arise in the person of the
deceased spouse’s heirs (article 15(b) of the Law)
“.
Consequently, he rejected the application.

The Supreme Court

The appeal raised an issue concerning the jurisdiction of the
Family Court of First Instance and to what extent does it acquire
jurisdiction to hear a claim, pursuant to Article 14 of the Law
232/91, after the death of the spouse against whom the claim would
have been directed had he been alive.

The Supreme Court unanimously agreed that the interpretation of
the Family Court of First Instance was incorrect. The Supreme Court
explained that “Article 15(b) does not refer to the right
of the surviving spouse to the property of the deceased, which is
an acquired and existing right, only that due to the death of the
spouse the claim must necessarily be directed against the
administrator or administrators of his property, as in any other
claim against a person who has passed away (Article 34(1) and (7)
of the Law on the Management of Inheritance of Deceased, Cap.
189)………In other words, what the deceased could claim, based
on Article 14, if he was alive, cannot be claimed by his
heirs
.”

The Supreme Court concluded that the Family Court of First
Instance has exclusive jurisdiction to deal with and hear the said
application before it and any other claim under Article 14 of the
Law 232/91.

The Supreme Court decision was influenced by the statement in
Philippou v. Philippou (2003) 1 (C) A.A.D.
1343
, where it was stated that “it is
evident that the intention of the legislator was to include all
property disputes between spouses without distinction in relation
to property acquired before the marriage in anticipation of the
marriage or at any time after the conclusion of the marriage, by
any of the spouses, in accordance with the provisions of the
Property Relations Regulation of Spouses Laws of 1991-1999, in the
exclusive jurisdiction of the Family Court, regardless of what the
basis of the action is
.”

Legal Findings

Hence, in light of the above, it is evident that, the
interpretation of Article 15 (b) of the Law 232/91 given by the
Family Court of First Instance was incorrect and the Family Court
of First Instance, in case of the death of one of the spouses, is
the only Court that has the jurisdiction to deal with and hear an
application submitted by the surviving spouse against the
administrator of the property of the deceased spouse in order to
claim posthumously his/her contribution to the increase in his/her
spouse’s property.

The Supreme Court decision of Prokopiou v Giagkou and
Pilidou as Administrators of the property of the deceased Karalouka
Appeal no. 22/2020
can be read in full detail by following
this link.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.



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