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Family Mediation – Historical Background and the Council of Europe

In 1995, the Third European Conference on Family Law encouraged the Council of Europe (“the Council”) to consider whether a recommendation should be adopted on the use of mediation or other alternative dispute resolution methods in relation to family disputes. Family law experts from Member States were invited by the Council to draw up a recommendation and submit it to the Committee of Ministers. On the 21^st of January 1998, the Ministers Committee approved the recommendation with Number R(98)1 (the “Recommendation”) for family mediation. The Recommendation reflects the common understanding that mediation is the best approach for family dispute.

Among other things, the Recommendation states that:

1. Whenever the parties agree, Member States should facilitate the registration of agreements resulting from mediation through a judicial or other competent authority and should provide mechanisms for enforcement of such agreements by national law.
2. Member States should recognise the autonomy of mediation and the possibility that mediation may take place before, during or after legal proceedings.
3. Member States should promote the development of family mediation. For example, it is suggested to Member States that they inform their citizens (through educational programmes) for the benefits of resolving their family disputes through mediation.
4. In addition, it was suggested that Member States should establish to provide relevant information on mediation as an alternative process to resolve family disputes (for example, by making it compulsory for parties to meet with a mediator). Through this the parties are enabled to consider whether it is possible and appropriate to mediate the matters in dispute.

In order to help Member States implement the Recommendation, the European Commission for the European Commission for the Efficiency of Justice (CEPEJ) on 07 December 2007 issued “Guidelines for a better implementation of the existing Recommendation Concerning Family Mediation and Mediation in Civil Matters” (“Guidelines”). Among other things, the Guidelines state the following:

1. Member States

Member states should recognise and promote existing as well as new workable mediation schemes through financial and other forms of support. Where successful mediation programmes have been established, Member States are encouraged to expand their availability through information, training and supervision.

2. Judges

Judges play an important role in the development of mediation. They should be in a position to disseminate information, arrange information sessions on mediation and, where applicable, invite the parties to use mediation and/or refer the case to mediation. It is therefore important to have the institution of mediation, either by establishing mediation rules which the court follows or by directing the parties to alternative dispute resolution bodies.

3. Lawyers

 The Code of Conduct for Lawyers should include an obligation or recommendation to consider alternative dispute resolution, including mediation. Therefore, lawyers should be required or advised before going to court to provide relevant information and advice to their clients regarding mediation.

After ten years, CEPEJ decided not to amend the Guidelines, but to supplement them with practical tools that could help Member States implement and develop the use of mediation, but also to support mediation stakeholders. These tools can be found here: https://rm.coe.int/mediation-development-toolkit-ensuring-implementation-of-the-cepej-gui/16808c3f52

In Cyprus, the House of Representatives passed the “Law on Mediation in Family Disputes of 2019.” Having in mind the extremely useful tool of Mediation and the above recommendations, the issuance of relevant regulations will create the proper background for the conduct of family mediation which will enable the citizens of the Republic of Cyprus to resolve their family disputes easily, peacefully and financially efficiently.

This article does not constitute legal advice.

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Table of Spouses’ Rights in Family Disputes and Mediation

The table below summarizes the rights of spouses in cases of family disputes. It should not be considered as comprehensive legal advice.

The above information does not constitute legal advice.

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Rights of a Spouse After Separation and After the Divorce

In the following article we analyse some of the rights of the spouse in case of separation and in case of a divorce.

1. Financial Support of the Spouse (Alimony)

In case the couple separates, the Court may, at the request of the spouse, order the other spouse to financially support (“Alimony”) the applicant. Termination of cohabitation can also occur even where the spouses live together under the same roof.

Alimony is personal and non-transferable. A necessary condition is the existence of marriage.

The obligation to pay alimony ceases with the dissolution of the marriage. For example, the death of a spouse, which brings the dissolution of the marriage, leads to the termination of the obligation to pay alimony.

Post-divorce support

In cases where the applicant seeks financial support from the other spouse after the dissolution of the marriage, this is called “Post-divorce support”

Post-divorce support is at the discretion of the Court, has a moral character and is intended to assist a poor ex-spouse. It is given for reasons of fairness.

Such support may be excluded or restricted if this is justified for important reasons, especially if the marriage was short-lived or if the beneficiary is heavily responsible for the dissolution of the marriage or the termination of the cohabitation or if being poor is voluntary.

Post-divorce support ceases if the spouse has remarried or is permanently cohabiting with another person.

2. Right of Exclusive Use of the Family Home

In case of termination of the Cohabitation or in case a notification is given to the bishop or in case a divorce petition has been filed, the Family Court may, at the request of one of the spouses, and for reasons of fairness and the interests of the children, grant to one of the spouses the exclusive use of all or part of the family home, regardless of who is the owner or has the right to use it.

The conditions are not cumulative.

Exclusive use of the family home can only be achieved during the marriage. With the dissolution of the marriage, the Decree of exclusive use expires.

3. Use of Movables

Each of the spouses is entitled to receive the movables belonging to him/her even if both spouses were using them. However, the spouse is obliged to allow the other spouse the use of household items which are absolutely necessary for moving elsewhere, if this is required for reasons of fairness.

4. Separation of the Property

In case the marriage is dissolved or in case of separation of the spouses where the property of one spouse has increased, the other spouse, as long as s/he has contributed in any way to this increase, has the right to demand the return of the part of the increase that comes from his/her own contribution.

Rebuttable presumption

The contribution of one spouse to the increase of the property of the other, is presumed to be one third, unless a greater or lesser contribution is proved. Therefore, if neither a larger nor a smaller nor a nil contribution has been proven to the increase of property, the contribution of the spouse will be calculated to one third.

In relation to the increase of the property of the spouses, property which has been acquired through the following means is not taken into account:

(a) Property acquired through a gift or inheritance.

(b) Property which has been acquired through the disposal of property acquired through a gift or inheritance.

Statute of limitations

The claim for participation in the increase in property is barred if it is claimed three years after the dissolution or annulment of the marriage.

Note however that the following reservation exists:

For the purposes of this Law, any claim in the form of a counterclaim, for the purpose of determining the limitation period, will be considered as a separate lawsuit, filed on the same date as the lawsuit in which the counterclaim is filed.

Loss of the right to file a lawsuit and reduction of the amount of the claim.

The Court may decide not to award an amount to the applicant spouse or it may decide to reduce the amount to which he or she is entitled if he or she has left the spouse without reasonable cause or has failed to provide support to him or her.

This provision was never applied in practice and the extent of this was never decided by the Second Instance Court. Neither was its constitutionality judged by the Supreme Court. However, in a first-instance decision concerning the an extramarital affair, it was stated that:

For the purposes of this article, the Courts consider the conduct of the other spouse towards the plaintiff spouse. In this case, the mutual suspicion, as I have mentioned before, had systematically shaken the marital relationship of the parties. It does not matter whether or not the beneficiary spouse is at fault in the divorce.

This Article does not constitute legal advice.

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Family Mediation and Property Disputes

Family Mediation is now a fact. With the enactment of Mediation in Family Disputes Law (L. 62 (I)/2019), family disputes may now be resolved through mediation. Such disputes include property disputes.

According to the Law, in case of separation or divorce in Cyprus, and given that there was an increase in the property of one of the two spouses during the marriage, the spouse, if he/she has contributed to this increase, is entitled to claim the corresponding share to his/her contribution.

Mediation in property disputes is an extremely crucial issue which significantly affects the rights in the movable and immovable property of the spouses. Although the Mediator does not express his own opinion, special care is required when handling such cases to avoid injustice to the parties. It is necessary in case immovable properties are involved, to assess the value of the property at the time of the separation and the time of its acquisition so as to determine the increase in value. The costs are borne by the parties together. The use of an expert family disputes is possible when both parties consent. It is noted that the costs of the expert are borne by both parties.

Also, where the Mediator has not received any training on matters relating to property disputes, it is important, so that the parties are not mislead, to invite an expert to participate in the process. Such an expert may be a lawyer.

One thing that a Family Mediator should be aware of, is that there is a rebuttable presumption that the spouse is entitled to one third of the increase in the estate; that is unless a greater or lesser contribution to the increase is shown.

It is noted that personal guarantees or mortgages tend to show that there has been a contribution for the benefit of the spouse.

Also, the contribution of the wife as a housewife who takes care of the husband and the children is presumed to have contributed 1/3 to the increase in the property.

Furthermore, in relation to the increase in the property, the following special rules must be observed:

1. Increase in property means movable or immovable property acquired either before the marriage with the prospect of marriage or acquired after the marriage. Therefore, there can be no claim in respect of property acquired before the prospect of marriage.
2. For the purposes of the division of property, any property acquired through a gift or inheritance (or the proceeds of disposing such property) are not taken into consideration.

Contrary to what applies in other jurisdictions, prenuptial agreements are not recognized as valid under Family Law in Cyprus. However, after the separation, the spouses can enter into an agreement to resolve their property disputes.

Such an agreement could also be a settlement agreement resulting from mediation. It is noted that, in contrast to the agreement resulting from a private initiative of the parties, the settlement agreement arising through mediation can be registered in the Family Court for enforcement.

The registration can be made jointly by the parties or by one of the parties with the written consent of the other parties.

The above information does not constitute legal advice.

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How is a Family Mediation Settlement Agreement Registered?

Family Mediation is now a fact. With the enactment of Mediation in Family Disputes Law (L. 62(I)/2019) family disputes may be resolved through mediation.

This means that any family disputes relating to parental responsibility, child support, alimony, or property relationships can be resolved through the alternative dispute resolution process of mediation.

Mediation in family disputes does not apply to disputes concerning the removal or assignment of parental care, nor does it apply to divorce. This is because it is only the Family Courts that can dissolve a marriage or entrust parental care.

The parties to the dispute will choose their mediator who will try to assist the parties reach an agreement to resolve their family dispute.

Example 1:

A couple who are in the process of divorce, appoint a mediator to resolve child support. That is, the amount that the spouse will pay to the other spouse for child support.

Example 2:

A divorce was granted between a couple, and the wife has been granted custody of the minors. The husband wishes to agree with his wife about the days he will communicate with the minors, the amount of child support and the settlement of their property differences.

Family Mediation Settlement Agreement

During the mediation process and provided the parties reach an agreement, then the mediation of the family dispute will end with the conclusion of a settlement agreement. This settlement agreement will include in its text the following:

√ The personal details of the mediator,

√ The place and time for the mediation,

√ The personal details of the parties,

√ The personal details of the people who took part in the mediation process,

√ The terms of the agreement reached by the parties during the mediation and

√ The date of its conclusion.

Procedure for Registering a Family Dispute Settlement Agreement

Once the family mediation settlement agreement has been concluded, it can be registered at the Court. This is not necessary if the parties comply with the terms of the agreement. However, where there is a breach of the agreement, and the parties wish to execute the agreement, it must be registered at the Court. Upon registering the agreement, it takes effect as a court order, with the result that the parties are able to use any possible enforcement measures at their disposal.

The settlement agreement is submitted jointly by all of the parties to the Court (if they so wish) or by one of the parties with the written consent of the other parties.

If the settlement agreement is formulated in a language other than Greek, the court may also request the production of a duly certified translation in Greek.

Following the application for enforcement of the agreement, the Court may then declare all or part of the agreement enforceable in the same manner as a judgment or court order. In such a case, the court may issue a judgement having the same content as the settlement agreement. Alternatively, it may reject the application for enforcement of the Settlement Agreement.

It is noted that the parties should proceed to the registration of the settlement agreement immediately. The reason is to avoid any limitation period in the case that the court decides that a settlement agreement is not enforceable.

Example:

The parties agree to use mediation for the settlement of their property disputes before their separation. Such an agreement is unenforceable. If the parties eventually divorce but do not apply to the Court for enforcement of the agreement, they will never know whether their agreement is enforceable or not. If 3 years have passed from the date of their divorce, then they are precluded from filing an application to the court to resolve the separation of the family assets.

The above information does not constitute legal advice.

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Mediation in Financial Support of the Spouse and Children

Family Mediation is now a fact. With the enactment of Law 62(I)/2019, on Mediation in Family Disputes, all family disputes (except assignment or removal of parental responsibility) can be resolved through mediation. One such dispute relates to the child support of children as well as alimony.

Factors that are Always Considered in Family Mediation

In all disputes relating to family mediation, the following factors are considered:

(a) Encouraging consensual approaches to reduce conflicts and hostility between parties in family disputes and to improve communication between all family members;

(b) limiting the negative effects of family conflicts;

(c) supporting and maintaining relationships between family members, in particular parents and children;

(d) safeguarding the best interests of the child;

(e) encouraging the shared parental responsibility for the care, well-being and development of children, in accordance with the Convention on the Rights of the Child, as well as any other Convention relating to the rights of the child ratified by the Republic, regardless of the marital status and living conditions of either parent; and

(f) the minimisation of the disputed issues and the final settlement of the family dispute in a shorter period of time than is required for its settlement through court proceedings.

Furthermore, a mediator in a family dispute must:

(1) in cases that the dispute concerns or affects a child generally or partially, hear the views of the child and must take them into account in accordance with the age and degree of maturity of the child; and

(2) take special care of the child’s well-being and interests, encourage the parents to focus on the child’s needs and remind them of their primary responsibility for the child’s well-being, as well as the need to inform and take into account the child’s point of view.

Child Support and Mediation

According to the Law, it is possible to reach an agreement relating to the financial support of children through mediation. Note that a child is defined as any person under the age of eighteen (18).

Child support is given to the parent who has custody and care of the children. Therefore, this parent can use family mediation in relation to the specific dispute. During mediation the mediator should take into account the needs of the child under consideration, the standard of living of the child before the separation of the parents and the financial ability of the parents.

Note that in order to determine the financial capacity of the parents, in addition to their real income, the possible income must also be taken into account.

The usual expenses that should be taken into account when mediating for Child Support in Cyprus are, inter alia the following (divided between the parents):

• Food
• Water and electricity bills
• Municipal/Community fees
• Telephone and internet bills
• Transportation costs
• Rent
• Clothing and footwear
• Medical expenses
• Tutoring
• Activities
• Entertainment and pocket money
• Personal care expenses

When the child is over the age of 18, family mediation is not possible.

Alimony and Mediation

According to the Law, the financial support of a spouse (or Alimony) is the monthly payment from one spouse to the other. In the case of a divorce, one or both spouses can appoint a mediator to agree on the amount of alimony they will have to pay.

It is not always the case that a spouse is entitled to alimony. More precisely, alimony can be ordered by the court in four distinct scenarios. Two of them apply to cases after separation and the other two apply to cases after the divorce. The cases are the following:

After the divorce

• If at the time of the divorce, the spouse, due to his/her age or health condition is not able to work so as to cater for basic necessities or
• If it is considered fair under the circumstances

After the separation

• If a spouse to whom custody of a minor or child over the age of 18 is granted, whose physical or mental condition does not allow him or her to work, or
• If the spouse cannot find a suitable job or needs training before he/she can find a suitable job. In any case, the period may not exceed three years from the date of the divorce.

The obligation to pay alimony may be on either spouse. The spouse with the lowest contribution to the cost of living during the marriage is entitled to alimony from the spouse who had the highest contribution. In order to assess the needs of the beneficiary spouse, all the circumstances are taken into account, including the conditions that existed during the marital cohabitation but also new needs that arise due to the separation.

The obligation to pay alimony may not apply in cases where the marriage was short-lived or where the spouse who would be entitled to alimony is seriously at fault for the dissolution of the marriage.

The above information does not constitute legal advice.

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Parental Responsibility and Mediation

Parental Responsibility in Cyprus is the responsibility of the parents over the minor child. [1] When exercising parental responsibility, parents should exhibit the same care they exhibit in conducting their own affairs. [2]

Parental Responsibility is a duty but also a right of the parents and is exercised jointly. However, in the case of ordinary acts of parental responsibility or acts of an urgent nature, parental responsibility may only be exercised by one parent. [3] Any decision of the parents regarding the exercise of parental responsibility should be in the best interests of the child. [4]

The interests of the child means the physical, material, spiritual, mental, moral and in general any type of interest.

According to the judgement of Ioannidis v. Ioannidis [5] in the process of parental responsibility applications, the element of confrontation between the parents should be absent. It is an inquisitorial process the ultimate goal of which is to better serve the well-being and interests of the child.

The Court, when called upon to entrust Parental Responsibility to one of the two parents, must show respect to the equality between the parents and not discriminate on the basis of sex, language, religion, belief, nationality, social origin or wealth. [6]

What Parental Responsibility Includes

Parental responsibility includes: [7]

“The legal custody, the parental care over the person, the physical custody, the communication and representation of the minor, the management of his/her property and any matter concerning the person and the property of a minor”

We note that parental care includes both the legal custody and physical custody [8] of the child and therefore separation is extremely difficult.

Parental responsibility includes the following: [9]

1. Parental Care

Regarding parental care, this is divided in the following: [10]

• The upbringing and supervision of the children.
• The education and training of the children.
• The determination of their place of residence.

Custody includes the legal custody as well as physical custody of the minor. Legal custody relates essentially to the care of the minor. Physical Custody concerns the place of residence of the minor as mentioned above.

Legal custody (guardianship) is with the parent who has the parental care of the minor.

The Court usually assigns legal custody along with physical custody mentioning the place of residency of the child and states that the other aspects are exercised by both parents. (e.g. identity card, passport, school, surgeries, health).

2. Identification of the name

Parents can identify their child’s surname with a joint written statement. The surname, which must be the same for all children can be the surname of either of the parents, or it can be a combination of their surnames. In case they fail to state their child’s surname, then it will take the father’s surname.

When a child was born before the marriage of its parents, it takes the mother’s surname. [11]

3. The administration of the child’s property.

Regarding the administration of the child’s property, with the permission of the Court, the parents may use the child’s property and income, which they can administer for the maintenance, education and general needs of the child. [12]

Parents are not allowed to make payments from the child’s property. [13] Also, parents cannot, without the permission of the Court, carry out acts for which the Commissioner needs permission. [14] Acts that need permission are the following, provided that the Court determines that they are necessary for the interests of the minor: [15]

“(a) To sell, mortgage, encumber, exchange or in any way alienate the property of a minor

(b) to lease the minor’s immovable property for a period exceeding five years

(c) to purchase real estate on behalf of the minor

(d) invest money that belong to the minor

(e) settle lawsuits or claims for or against the minor. “ 

4. Representation of the child in any case or legal act which concerns the person or property of the child. 

When does the Court intervene in cases of parental responsibility?

The (1) assignment and (2) the way that parental responsibility is exercised can be ordered by the Court [16] and the opinion of the minor is taken into account – depending on their maturity and perception. This is done without any discrimination based on gender, language, religion, belief, nationality, national or social origin or wealth. [18]

Before a decision of the Family Court in relation to a final decree (not temporary) which concerns parental responsibility (e.g. communication) it is necessary to have a report of an official from the Social Welfare Services. The report must provide the court with the information it needs to help the court reach its decision.

Relevant is Rule 5 of the Rules of Custody of Minors and Prodigals [19] which states that the Court appoints a Social Welfare Officer as soon as possible at the District where the applicant or the minor resides. The Officer has a duty to investigate all the parameters in order to safeguard the interests of the minor and to submit a relevant report to the Court.

It is also the duty of the Welfare Officer: [20]

(a) to conduct inquiries into matters for which there is a claim which may assist the Court in relation to the applicant’s suitability to become a guardian; and

(b) interview in person (or through another official) the applicant or the person referred to in the application or the person to whom notification of the application is required under Regulation 11(3) (these persons are the parents or any person which the Court decides);

If the Officer’s report does not contain the reasons for which he/she arrives to a conclusion – that is, he/she does not state the reasons for suggesting that the father/mother should have contact with the children – then the report does not provide the necessary information to assist the Court. [21]

The result is that, if the Court bases its decision on the conclusions of the report and such conclusions have not emerged from the Court’s own interview with the children, the Court’s decision is considered invalid.

The degree of maturity of a minor is confirmed through the conversation of the Court with the minor. There are no established rules governing the conduct of the conversation, but there are principles that must be followed.

Specifically, and based on the decision of Konstantinos v. Xiouros [22] (Appeal No. 4/2015) dated 14/01/2020 in the court decision which regulates the issue of parental responsibility, the court must:

… state clearly both the judgment of the court as to the substance in that the specific regulation promotes the best interests of the child and the factual facts supporting that judgment. If this is not the case, the decision of the court on the substance has no legal basis, i.e. it is insufficiently reasoned.

The determination of the minor’s maturity is assessed by the Court.

The legal framework for the intervention of the Court is provided by articles 7 and 14 of the Law which state that: [23]

«7. If the parents disagree in the exercise of parental responsibility and the best interests of the child require that a decision is taken, the Court shall decide, at the request of either parent. “

 14(1). In the event of divorce or annulment of the marriage and provided that both parents live, the exercise of parental responsibility is regulated by the Court. “

That is, parental responsibility can be decided by the Court where (1) the parents disagree or (2) in the event of divorce or marriage annulment. According to article 15 of the Law, the provisions of article 14 also apply in case there is an interruption in the cohabitation of the spouses – that is, their separation. [24]

What Decrees can the Court Issue?

FIRST DECREE: The first decree that the Court can issue is the assignment of parental care of the Child. This type of decree addresses the issues discussed above and concerns parental care. This is the assignment of parental responsibility.

We note that in cases of mediation, the assignment and removal of parental responsibility is the only issue in which the mediator cannot intervene.[25]

According to Article 14(2), in the event of divorce, separation or annulment of marriage, the Court may entrust parental responsibility to one or both parents (if they so agree). [26]

SECOND DECREE: The Second Decree is that of Physical Custody of the minor. In such a case, the Court also determines the place of residence of the child. [27]

We note that it is possible for the Court to issue a decree of physical custody, care, and parental responsibility of a minor (i.e. the First with the Second Decree).

THIRD DECREE: The third decree that the Court can issue is that of personal communication with the child by the parent who does not have the physical custody of the child.

According to Article 17, the parent with whom the child does not reside reserves the right to personal communication with the child [28] and in case of disagreement over the exercise of this right, the Court will decide. [29]

In contrast with parental responsibility, which is a “duty and a right” of the parents, the personal communication of a parent with a child who does not live with him/her, is a “right” -not an obligation- and it is regulated by the Court when there is a dispute over its exercise. [30]

That is, it is not possible for the parent who has the physical custody to apply to the court so that the court orders the other parent to communicate with the children. According to V. Vathrakokilis in the book “The New Family Law:

The right of communication is not obligatory and consequently the parent has no legal obligation to communicate with the child. After all, the establishment of such a legal obligation presupposes a corresponding right of the child to communicate with his parent, which, however, is not a right stated in the law. Therefore, there is no legal claim claim against the other parent, and s/he cannot be forced into communication with the child.

An application for communication is filed by a separate application to the court under Article 17. Within this application, an interim injunction may be filed as well.

FOURTH DECREE: Stop-list. In case there is a risk that one parent will leave the Republic permanently together with the minor, the other parent may apply to the Court for a stop-list decree. This decree prohibits the minor child from leaving the Republic without the consent of both parents, or, in case they disagree, the leave of the court may be required.

Such an order may be issued directly at the request of a party after the dispute or it may form part of the applications for the decrees mentioned above.

The stop list process may be agreed during mediation if the parties so agree.

Criteria Taken into Account

The criteria taken into account by the Court are first and foremost the best interests of the child. The child’s relationship to the parents and siblings and any parental agreements for the custody and administration of the child’s property are also taken into account. [31]

The Court decides on the matters of Parental Responsibility based on the interests of the minor child and does not aim at imposing sanctions or holding any of the parents responsible for misconduct.

Mediation and Parental Responsibility

According to the provisions of Law 62(I)/2019 on Mediation in Family Disputes, any family dispute related to the institution of the family can be resolved through mediation. However, cases of removal or assignment of parental responsibility are excluded.

In other words, we consider that issues related to the legal custody of the child cannot be part of the family mediation process. Only the communication with the parents can be mediated.

This makes sense because in matters relating to the removal or assignment of parental responsibility a welfare officer is involved and the court interviews the minor.

For matters which are related to the removal or assignment of parental responsibility, mediation is possible. An example is the communication with the child.

This is made clear by the obligations of the mediator which are mentioned in article 10 of the abovementioned Law. Specifically, the mediator: [32]

«ζ. in the event that the dispute concerns or affects the child in whole or in part, shows particular care for the welfare and best interests of the child, encourages parents to focus on the child’s needs and reminds them of their primary responsibility for the child’s well-being, as well as the need to inform the child and take his or her point of view into account

η. in the event that the dispute concerns or affects partially or generally a child, if it is necessary and after consulting with both parties, listens to the views of the child and takes them into account according to the age and degree of maturity of the child. ”

The above information does not constitute legal advice.

[1] Law on Parent-Child Relationships, a 5 (1) (a)

[2] Law on Parent-Child Relations, a 13 (1)

[3] Law on Parent-Child Relations, a 8

[4] Law on Parent-Child Relations, a 6 (1)

[5] Ioannidis v. Ioannidis, (2002) 1 Α.Α.Δ. 1446

[6] Law on Parent-Child Relationships, a 6 (2) (b)

[7] Family Courts Rules of Procedure of 1990 (2/1990), a 2

[8] Law on Parent-Child Relationships, a 9 (1)

[9] Law on Parent-Child Relationships, a 5 (1) (b)

[10] Law on Parent-Child Relationships, a 9 (1)

[11] Law on Parent-Child Relations, a 4 (1) (a)

[12] Law on Parent-Child Relations, a 10

[13] Law on Parent-Child Relations, a 11

[14] Law on Parent-Child Relations, a 12

[15] Law on Parent-Child Relations, a 26 (1) and 26 (3)

[16] Law on Parent-Child Relations, a 6 (2) (a)

[17] Law on Parent-Child Relations, a 6 (2) (a)

[18] Law on Parent-Child Relations, a 6 (2) (b)

[19] The Procedural Regulation on Custody of Minors and Prodigals, L.24 / 1936, a 5 (1)

[20] The Procedural Regulation on Custody of Minors and Prodigals, L.24 / 1936, a 5 (1) (a) and (b)

[21] Konstantinou v. Xiourou, Appeal No. 4/2015, dated 14/01/2020

[22] Konstantinou v. Xiourou, Appeal No. 4/2015, dated 14/01/2020

[23] Law on Parent-Child Relations, a 7

[24] Law on Parent-Child Relations, a 14

[25] Mediation in Family Disputes of 2019 (Law 62(I)/2019), a 2

[26] Law on Parent-Child Relations, a 14 (2)

[27] Law on Parent-Child Relations, a 14 (2)

[28] Law on Parent-Child Relationships, a 17 (1)

[29] Law on Parent-Child Relationships, a 17 (2)

[30] Law on Parent-Child Relations, a 17

[31] Law on Parent-Child Relationships, a 14 (3)

[32] Mediation in Family Disputes Law of 2019, L.62(I)/2019, a 10 (2) (g) and (h)

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Mediation and Divorce in Cyprus

Mediation in Family Disputes includes matters of parental responsibility, child support, maintenance of spouses or cohabitants as well as property disputes. According to the relevant Law, on Mediation in Family Disputes (L.62(I)/2019), a family dispute includes a dispute related to the institution of the family except in specific cases (such as the assignment and removal of parental responsibility).

The question arises as to whether in cases of mediation in family disputes a divorce can be agreed between the parties. The short answer is no, and we explain the reasons below.

Divorce in Cyprus

Divorce in Cyprus may be granted in accordance with Article 111(2)B of the Constitution. The reasons are the following:

• Those mentioned in the Statute of the Church of Cyprus. The reasons according to the Statute of the Church are the following:

(a) Adultery

(b) Immoral, dishonourable, or other conduct of the spouse which leads to the termination of the marital relationship and makes the cohabitation unbearable. Such conduct is, for example, the unjustified overnight stay of the wife in a non-relative home without the consent of her husband when the overnight stay raises reasonable suspicions of adultery. When the husband accuses the wife in court of adultery which has not been proven.

(c) When there is an attempt against the life of another spouse. Physical abuse that may result in physical or mental disability is considered such an “attempt on life”

(d) Another reason for divorce is the insanity of the spouses for more than three years, which makes the cohabitation unbearable.

(e) The final sentencing of the other spouse to imprisonment for a period of more than seven years.

(f) When a spouse disappears.

(g) The impotence of another spouse which continues for more than 6 months.

(h) The unjustified abandonment of the applicant of the family house for two years.

(i) The change of religion or doctrine of belief.

(j) Persistent obstruction of childbearing despite the desire of the other spouse for childbearing.

• When the relations between the spouses have been severely shaken and these reasons concern the person of the defendant or both spouses.

It is noted that based on the Family Courts Law of 1990 (L.23/1990) it is presumed that the relations have been severely shaken for reasons concerning the person of the defendant in cases of bigamy or adultery or abandonment of the applicant or intrusion into his/her life or violence by the defendant, in the sense attributed to the term “violence” under the Law on Domestic Violence (Prevention and Protection of Victims).

• For any other reason referred to in the relevant Legislation.

Why is it not possible to mediate in a divorce?

The main reason that it is not possible to mediate in a divorce, is because a divorce is ineligible to be decided or agreed by the parties. It is only through the Court that a divorce can be issued.

Furthermore, in accordance with Law 95/89, consensual Divorce does not exist as a reason for divorce.

Another reason, especially with regard to religious marriages, is that, before someone can file for a petition for a divorce, a relevant notice must be sent to the Bishop requesting the dissolution of the marriage. According to article 3 (1) of the Conciliation Attempt for Spiritual Divorce of Marriage Law of 1990 (L.22/1990):

3.- (1) Subject to the provisions of subsection (2), no action for the dissolution of a marriage shall be registered, unless it has been notified in advance to the competent Bishop in accordance with the Law.

 The filing of a petition for divorce may take place after the lapse of three months from the receipt of the notification by the Bishop. Therefore, it is only then that a relevant petition can be filed. The Law does not mention or refer to an agreement between the parties (which will be the result of mediation).

Sending such a letter is something which does not sit well with the notion of mediation of family disputes. For this reason, mediation and divorce in Cyprus cannot coexist.

We note that there is no obstacle for the parties to agree on the date of their separation in the context of family mediation.

The above information does not constitute legal advice.

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Family Mediation in Cyprus – Procedure

To learn more about the purpose and principles of family mediation, the provisions relating to Registration in the Family Dispute Mediation Register, the mediator’s obligations in family disputes as well as the relevant family law provisions concerning the basic principles of Family Mediation in Cyprus you may click here.

Family Mediation in Cyprus: Appointing the Mediator

Regarding Family Mediation in Cyprus and the appointment of the Mediator, the Law stipulates that if the parties to a family dispute agree to resort to mediation to resolve their dispute, they may appoint a mediator from the Mediators Register.

If the parties cannot agree on the person responsible for their family mediation, then the mediation will not take place. The same applies if the mediator denies his appointment – something he can do without justifying his decision to the parties.

What should be included in the family mediation agreement?

Family Mediation in Cyprus should be agreed in writing and it should state the following:

• The manner in which the mediation process will be conducted;
• The duration of family mediation;
• The obligation to maintain the confidentiality of the process;
• The obligation to conduct discussions and negotiations within the framework of family mediation under a state of professional secrecy;
• The manner of determining the mediator’s remuneration, as well as the percentage of remuneration to be paid by each party to the mediation and the terms of payment of the mediator;
• Any other costs of the family mediation process; and
• Any other matter deemed necessary

Regardless of the terms of the agreement, any party may terminate the family mediation process at any time.

Family Mediation in Cyprus without the involvement of the Court

In case of family mediation in Cyprus, Article 16 of the Law explicitly provides that the parties may regulate or resolve their family dispute in whole or in part through the process of mediation, without having to attend a family court. This means that a dispute may be resolved without the involvement of the court.

Family Mediation with the involvement of the Court

According to the Law, the court before which a lawsuit is pending (the subject of which is a family dispute in Cyprus) may, at any stage of the proceedings before a decision is issued may, if it deems that the dispute between the parties has a likelihood of being resolved through family mediation, request from the parties to appear before it. At that stage the court informs the parties of the manner in which the mediation process will be conducted and of the possibility of resolving their family dispute through this procedure.

In order for the Court to decide whether the dispute before it is likely to be resolved by family mediation, the Court must consider whether:

(a) From the information before it, the case may contain elements of domestic violence,

(b) The mediation is in the best interests of the child.

If the dispute before the court concerns or affects a child in whole or in part, the court may, before deciding that the case may be appropriate for family mediation, request to hear the child or any of the children, depending on their age and degree of maturity,

(c) The parties communicate with each other and are willing to resolve their disputes through mediation.

Where the family dispute affects a child, the court may, if it deems necessary, set as a condition for the adjournment of the proceedings and referral of the parties to family mediation, the representation of the child in the mediation process, by the Commissioner for Children’s Rights or his/her representative. In case any of the parties does not agree with this condition, the court will not adjourn the court proceedings.

If the parties have already submitted their dispute to the court, they may choose to resolve it through mediation by applying to the Court before which the dispute is pending. In such a case, the Court adjourns the proceedings for a period not exceeding three months. The court may, on its own initiative or at the request of any of the parties, terminate the mediation process before the expiration of the specified period.

Family Mediation after a court order or judgement

Family mediation in Cyprus can take place even after the end of court proceedings.

This is the case when, after the end of court proceedings concerning a particular family dispute, another dispute arises over the execution of an order or judgement issued by the court in the course of the proceedings and there is a need to either amend this decree or determine how it will be executed. In such a case, the parties may proceed with family mediation by applying the provisions of the relevant Law.

The above information does not constitute legal advice.

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Family Mediation in Family Disputes in Cyprus

• Mediation of disputes relating to parental responsibility disputes
• Mediation of disputes relating to children’s maintenance,
• Mediation of disputes relating to alimony and
• Mediation of disputes relating to property disputes of spouses or couples.

The Law does not include in its ambit a dispute relating to the removal or assignment of parental responsibility. Parental responsibility includes the identification of the name, custody of the child, the administration of the property and the representation of the child in any case or act concerning the child or its property as well as its upbringing and supervision, its education and training as well as the determination of its place of residence.

In relation to assignment of parental responsibility it is the Family Disputes Court which will decide and not the parties to the mediation. The Court in cases of divorce or separation and if both parents are alive, may regulate the parental responsibility and assign it to one of the parents (or both). In disputes other than those concerning parental responsibility, the parties may use the mediation for their family dispute. Therefore, the parties may mediate on matters such as the place of residence of the child or issues relating to communication of the child with one of the parents.

It is noted at this stage that family mediation is not necessary to resolve all the aspects of a family dispute. That is, a mediator appointed over a family dispute may focus on a specific part of the dispute (for example, the parent to whom the family home will be transferred, who will reside in it, etc., without dealing with individual issues such as with any other property acquired during the marriage).

Purpose of mediation in family disputes in Cyprus:

The purpose of mediation in family disputes in Cyprus is that the parties, with the contribution of a mediator, will mutually decide on how to resolve their family disputes. The goals of family mediation, are, in accordance with the Law, the following:

(1) Encouraging consensual approaches to reduce conflicts and hostility between parties in a family dispute and improving communication between all family members;

(2) Limiting the negative effects of family conflicts;

(3) Supporting and maintaining relationships between family members, especially between parents and children;

(4) Ensuring the best interests of the child;

(5) Encouraging joint parental responsibility for the care, well-being and development of children, under the Convention on the Rights of the Child, regardless of the marital status and living conditions of any of the parents; and;

(6) Limiting the matters in dispute and bringing final settlement of the family dispute more speedily than through the judicial process.

Principles of family mediation in Cyprus:

According to the Law, family mediation in Cyprus is conducted in accordance with the following principles:

(1) The prohibition of discrimination on the grounds of race, color, religion, sex, ethnic or racial origin, community, beliefs, social or economic status or for any other reason;

(2) Ensuring the best interests of the child;

(3) Confidentiality, neutrality and impartiality;

(4) Voluntary participation of the parties; and

(5) the Family mediator taking into account any vulnerable position of any of the parties to the mediation.

Registration in the Family Dispute Resolution Register

It is obligatory for a family mediator to be registered in the Family Mediators Register. This register is kept by the Ministry of Justice and Public Order, and is also published on the website of the Ministry.

To register in the Family Mediators Register, a person must attend family dispute mediation courses (the hours to attend such courses have not yet been determined). The registration can be renewed with 24-hour courses after the first 6 years of registration and every 3 years thereafter.

 To be registered in the Family Mediators Register, the family mediator must meet the following criteria:

(a) Hold a university degree or diploma recognized by the competent body in the Republic in law, psychology or social work;

(b) Must be registered in the relevant professional register of the profession in which he is employed;

(c) Must have pursued in Cyprus or abroad, in the public or private sector, the profession for which he holds one of the university titles or diplomas referred to in paragraph (a), for a continuous period of at least one (1) year, before submitting the application for registration in the Family Mediators Register;

(d) Must have been a permanent resident of the Republic for the last two (2) years prior to the submission of his application for registration in the Family Mediators Register;

(e) Must not hold or has held a permanent position in the public service or in the wider public sector for the last two (2) years prior to the submission of an application for registration in the Family Mediators Register;

(f) Must not have been convicted of a serious criminal offense or a misdemeanor an element of which is immoral contact or fraud;

(g) Must not have been under commission or guardianship and must not be deprived of his legal capacity;

(h) Must have received special training in mediation in family disputes, as set out in Regulations issued under the provisions of Article 43; and

(i) Must maintain an insurance contract with a licensed insurance company regarding the provision of insurance coverage against liability for professional negligence in the exercise of the profession of mediator of family disputes.

Article 9 of the relevant Law concerning Mediation in Family Disputes states specific instances under which a person’s registration may be struck-off the register. Such cases include bankruptcy, a request by the mediator, death, non-continuation of the mediator’s professional training, etc.

Mediator Obligations in Family Mediation

The Mediator in Family Mediation cases performs his duties with diligence, independence and impartiality, in an appropriate and effective manner, regardless of his or her capacity or profession and regardless of the manner in which he or she was assigned to undertake such mediation. S/he is not under the control and does not follow the instructions of any person or authority.

According to Article 10 of the Law, the Family Mediator must:

(a) Act in accordance with the principles governing the mediation process, as set out in Article 5 and the Code of Conduct of Family Mediators which is issued pursuant to the provisions of Article 45,

(b) Act impartially as regards the parties,

(c) Be neutral, as to the effect of mediation,

(d) Respect the views of the parties and ensure the balance of power of their negotiating positions,

(e) Ensure the private and confidential nature of the mediation and in particular the arrangements taking place in it and ensures that everything referred to in the mediation is not disclosed, except as provided in paragraph (f) of this Article and Articles 27 and 28,

(f) Inform the parties that statements made during the mediation process which show that any person, especially a child, has been or may be subject to violence or abuse will be disclosed by the mediator to the competent authorities, in accordance with the provisions of paragraph (b) of subsection (2) of Article 27,

(g) In the event that the dispute concerns or affects a child in whole or in part, the fa,o;u mediator must show particular concern for the welfare and well-being of the child, encourages parents to focus on the child’s needs and reminds them of their primary responsibility for its well-being, as well as the need to inform the child and take its opinion into account,

(h) In the event that the dispute concerns or affects a child in whole or in part, if the family mediator deems it necessary and after consulting with the parties, the mediator hears the views of the child and takes them into account depending on its age and degree of maturity.

(i) Pay particular attention to whether or not violence has been used in the past or in the future between the parties, as well as the effect it may have on their negotiating positions.

If the family mediator believes that, under the specific circumstances of the dispute, the mediation process is not appropriate then the mediator terminates the mediation under the provisions of Article 32,

(j) Where the mediator feels that any of the parties to the mediation is unable or unwilling to participate in the proceedings freely and fully, raise the issue and consider the possibility of terminating the mediation process, and

(k) Prevent manipulative, threatening or intimidating behavior from any party and conducts the proceedings in such a way as to prevent, as far as possible, any inequality of power between the parties.

It is understood that, if any such conduct or inequality is likely to make the mediation unfair or ineffective, the mediator shall take the necessary measures to prevent this, including the termination of the proceedings, if the family mediator deems this necessary.

There are other duties that the family mediator should abide by such as for example not having a conflict of interest, ensuring that the parties are equally involved in the process, that the parties understand the process, that the Mediator is guided by the Code of Conduct for Family Mediators and the European Code of Conduct for Mediators.

This Article does not constitute legal advice.

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