The full bench of the Supreme Court, exercising its jurisdiction to examine the constitutionality of laws, recently held by a majority of eight to four that Article 38(2) of the Relationships between Parents and Children Law,(1) which provides for an automatic child support increase of 10% every two years, is not unconstitutional.
The article reads as follows:
"Irrespective of the provisions of paragraph (1) the amount of child support is automatically increased by 10% every 24 months. The Court may, following an application made by the person liable to provide child support, order that this automatic increase shall not apply and/or that the increase is restricted. In case that such an application is made, the obligation to pay any increased amount is postponed."
Due to her ex-husband's consistent failure to comply with the automatic increases of child support and pay accordingly, the applicant applied to the court for a warrant against him. The respondent contended that the automatic increases without the authority of a court judgment were unconstitutional and thus invalid. The Family Court, having no authority to examine the constitutionality of laws, referred the matter to the Supreme Court.
The respondent argued that the law providing for an automatic increase in child support was unconstitutional because it disregards and violates Article 30(2) of the Constitution, which provides as follows:
"In the determination of his civil rights and obligations or of any criminal charge against him, every person is entitled to a fair and public hearing within a reasonable time by an independent, impartial and competent court established by law."
The argument put forward on behalf of the respondent was that only the court is competent to decide on an increase in child support, following a proper hearing in which all of the parties concerned have the opportunity to be heard. By enacting the law as it had, the legislature had effectively exercised judicial powers in violation of the principle of the separation of powers.
Against this, the applicant argued that Article 38(2) neither prevented the respondent having access to the court nor violated his right to a hearing. On the contrary, the second and third sentences of the article explicitly allowed the affected party to apply to court so that the automatic increase does not apply or is restricted.
The majority of the Supreme Court rejected the argument of unconstitutionality, holding that Article 38(2) in no way predetermines legal rights without a hearing. The automatic increase of 10% will take place only if a court has already issued a child support order, and it is always subject to Article 38(1), which gives the court power to amend the order or even terminate child support in case of a change in circumstances, on an application made by either party.
Further, according to the second sub-paragraph of Article 38(2), the person affected may apply to the court for the automatic increase to be amended or cancelled. Accordingly, the majority concluded that Article 38(2) was introduced merely as a way of facilitating the adjustment of child support payments in line with the cost of living without the need for successive applications, and in no way prevents the person liable to pay from applying to the court.
A minority of the court accepted the respondent's argument that Article 38(2) is unconstitutional on the grounds that it imposes on every child support order a condition of an automatic increase every 24 months. This condition is not imposed by the court but by the legislature (ie, the House of Representatives). The effect is that a court order which had been presumably issued following a fair and proper hearing in accordance with Article 30(2) of the Constitution is subsequently modified:
- without any hearing;
- without informing the person liable to pay; and
- without giving them an opportunity to defend themselves.
This violates both Article 30(2) of the Constitution and the principle of the separation of powers.
Given that the vast majority of those affected by the automatic increase have applied to have it challenged, particularly now that the automatic increase is much greater than the general level of inflation, it is indeed questionable whether Article 38(2), which was introduced with the good intention of reducing unnecessary court applications, has proved helpful.
Even though the decision was not unanimous, this matter is now settled and should act as a reminder to those affected of the importance of being aware of their rights and of acting promptly to defend them.
For further information on this topic please contact Sotos Kasinos at Elias Neocleous & Co LLC by telephone (+357 25 110 110) or email ([email protected]). The Elias Neocleous & Co LLC website can be accessed at www.neo.law.