|
ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
|
|
|
(1962) 1 CLR 68
1962 March 9
[VASSILIADES, J.]
PHIDIAS CHRISTODOULOU,
Petitioner,
v.
KATERINA CHRISTODOULOU THEN KATERINA
JOANNOU CHARALAMBOUS,
Respondent.
(Matrimonial Petition No. 15/61).
Matrimonial causes-Jurisdiction-Petition for nullity of a civil marriage-Parties thereto both members of the Greek Orthodox Church of Cyprus-Civil marriage solemnized at a Register Office in England-Therefore the case does not come within the purview of Article Ill of the Constitution-And it is cognizable by the High Court under section 19(b) of the Courts of Justice Law, 1960 (Law of the Republic No. 14/60).
Constitutional Law-Article III I of the Constitution.
Territorial jurisdiction-Domicile of the husband, the petitioner, in Cyprus-Therefore, irrespective of whether the domicile of the wife-respondent was prior to the marriage in England, there is jurisdiction in the High Court to try the case under the provisions of section 29(2) (b) of the aforementioned Courts of justice law, 1960, coupled with section 33(2) of the Courts of Justice Law, Cap. 8-Concurrent jurisdiction of English Courts possible.
The petitioning husband, a young Greek Cypriot, domiciled in Cyprus went through the ceremony of a civil marriage with the respondent, in England on the 9th December, 1960, while he was temporarily there for purposes of studies. The other party to the marriage (the respondent), was a Cypriot girl domiciled in England and living there with her parents. Both parties profess the Greek Orthodox faith and are members of the Greek Orthodox Church of Cyprus. The parties lived together for several months in England, as husband and wife, and then the husband returned to Cyprus in July 1961. While still in England, the husband deserted the wife; the wife followed him to Cyprus, but he refused to have anything to do with her.
The husband in December 1961, instituted the present proceedings in Cyprus for nullity on the ground that at the time of the marriage being an infant of nineteen years and nine months old he could not contract a valid marriage in England without his father's consent which was not given for this marriage. The document purporting to give such consent, produced at the Register Office for the solemnisation of the marriage "was false and untrue", as the petitioner alleged. The respondent denied the allegation and questioned the jurisdiction of the High Court to deal with the petition.
Article 111 of the Constitution reads as follows :
"1. Subject to the provisions of this Constitution any matter relating to betrothal, marriage, divorce, nullity of marriage, judicial separation or restitution of conjugal rights or to family relations other than legitimation by order of the court or adoption of members of the Greek-Orthodox Church or of a religious group to which the provisions of paragraph 3 of Article 2 shall apply shall, on and after the date of the coming into operation of this Constitution, be governed by the law of the Greek-Orthodox Church or of the Church of such religious group, as the case maybe, and shall be cognizable by a tribunal of such Church and no Communal Chamber shall act inconsistently with the provisions of such law.
2. Nothing in paragraph 1 of this Article contained shall preclude the application of the provisions of paragraph 5 of Article 90 to the execution of any judgment or order of any such tribunal."
Section 19 of the Courts of Justice Law, 1960, provides "The High Court shall, in addition to the powers and jurisdiction conferred upon it by the Constitution, have exclusive original jurisdiction-(a)..... (b) save where a matrimonial cause is, under Article III of the Constitution, cognizable by a tribunal of a Church or by a court established by a Communal Law under Article 160 of the Constitution, in relation to matrimonial causes and matters. and such other powers as were before Independence Day (viz. 16th August, 1960) vested in or are exercisable by the Supreme Court of Cyprus under the Law repealed by this Law".
The Law repealed just referred to is the Courts of Justice Law, Cap. 8.
Section 29(2) of the Courts of Justice Law, 1960, provides : "The High Court in exercise of the jurisdiction- (a). (b) conferred by paragraph (b) of section 19 shall apply the law relating to matrimonial causes which was applied by the Supreme Court of Cyprus on the day preceding Independence Day, as may be modified by any law made under the Constitution."
By section 33(2) of the Courts of Justice Law, Cap. 8 in force on the day preceding Independence Day, the law relating to matrimonial causes which was applied by the former Supreme Court of the Colony of Cyprus, was the law relating to matrimonial causes administered for the time being by the High Court of Justice in England. On the other hand by section 34(a) (i) (aa) of Cap. 8, the jurisdiction of the former Supreme Court to hear and determine matrimonial causes under section 20(b) thereof covers cases where either party is a member of the Greek-Orthodox Church and the marriage has not been celebrated in accordance with the rites of the Greek-Orthodox Church, as it is the case in the instant proceedings.
Held: (1) Under the provisions of the Courts of Justice Law, Cap. 8, sections. 20 and 34, the Supreme Court of the Colony of Cyprus had undoubtedly jurisdiction to entertain proceedings for nullity of a civil marriage (a proceeding not cognizable by a Church Tribunal). This jurisdiction has been reserved for the High Court of the Republic by section 19 of the Courts of. Justice Law, 1960, (Law of the Republic No. 14/60) and is not affected by the provisions of Article III of the Constitution.
(2) Applying the English principles, which are applicable under the provisions of the Courts of Justice Law, 1960 (supra), section 19(b), the husband's (petitioner's) Cypriot domicile alone would give to this Court jurisdiction to entertain the petition; the wife's antenuptial domicile and her residence in England may confer a concurrent jurisdiction on the English Courts.
Question of jurisdiction decided in
the affirmative.
Cases referred to:
Myrianthi Tyllirou and Charalambos Tylliros, 3 R.S.C.C. 21 ;
Poutros v. Poutros, Matrimonial Petition No. 12/61 decided on 19.2.62, unreported ;
Wallis v. Wallis, reported in this volume, p. 32, ante ;
Jasonos v. Iasonos, Matrimonial Petition No. 14/61 decided on 2.3.62, unreported ;
Ross-Smith v. Ross-Smith, (1962) 2 W.L.R. 388.
Petition for Nullity of Marriage by the Husband.
On the question of jurisdiction of the Court to entertain the petition, the following ruling was made on the 25th May, 1962.
Chr. P. Mitsides for the petitioner.
Lefkos N. Clerides for the respondent.
Cur. adv. vult.
VASSILIADES, J.: When the parties first appeared before the Court on the 28th February last, in connection with an application for adjournment, the question of jurisdiction was raised by the court.
"Before I can deal with your case at all, - I said to counsel for the petitioner, who was making the application for adjournment - I would like to hear you on the question of jurisdiction. Has this Court jurisdiction to deal With the present petition ?"
As Counsel on both sides were not ready to make submissions on the question raised, the case was adjourned for hearing on the 9th of March with directions under r.43. of the Matrimonial Causes Rules, Cyprus (Green Book Vol. II, Rules of Court, p. 296) for the trial of that issue. And on the 9th March, learned counsel on both sides made their submissions.
Mr. Mitsides for the petitioner submitted that this is the only competent Court in the Republic of Cyprus, to entertain the petition. His client, the petitioning husband, he said, is admittedly a citizen of the Republic, domiciled in Cyprus where he has always had his permanent place of residence. He lives at Morphou where he works as electrician.
Both parties are members of the Greek Orthodox Church, counsel further stated, but as their marriage was not celebrated by the church, (being a civil marriage celebrated in England where the parties were found at the time) the Greek Orthodox Church does not recognize the marriage, and its Ecclesiastical Courts will not take cognizance of these proceedings.
Article 155 of the Constitution, counsel submitted, gave this Court original jurisdiction to deal, inter alia, with such matters as may be provided by a law; and section 19(b) of the Courts of Justice Law 1960 (No.14/1960) provides the Court with jurisdiction in matrimonial matters, such as the proceeding in hand.
Article 111 of the Constitution, does not affect the position, counsel argued, as the marriage, the subject matter of the petition, is not recognized by the Church or is it cognizable by its Courts.
Mr. Lefkos Clerides for the respondent, on the other hand, submitted that in a suit for nullity such as this, the proper Court to deal with the matter is the Court of the place where the marriage was celebrated.
Counsel agreed that both parties are members of the Greek Orthodox Church; and that as their Church does not recognize a civil marriage, its Ecclesiatical Courts will not take cognizance of this case. The law governing their marriage, learned counsel argued, is the Canon Law of the Greek Orthodox Church; and no matter touching nullity of marriage between members of the Greek Orthodox Church, is cognizable by any Court other than an Ecclesiastical Tribunal of their Church, as expressly provided, in art.111 of the Constitution.
As regards the parties' domicil, Mr. Clerides admitted that the petitioning husband is domiciled in Cyprus where he now lives; but contended that his client, the wife, was domiciled in England at the time of the marriage, where she has acquired a domicil of choice.
In matters of nullity, learned, counsel further argued, the question of jurisdiction is not clear, as writers on private international law, are not agreed on the point The wife's domicil at the time of the marriage, and the place where the marriage was celebrated, are important and decisive factors; and in this case, the petitioner must seek his remedy in the English Courts, counsel submitted.
The case raises an important and rather difficult issue under the law of Cyprus in its present form. I say the law of Cyprus, having regard to the Constitution; and in particular to article 111 thereof.
The material facts giving rise to the issue in question, constitute common ground. The petitioning husband, a young Greek-Cypriot, domiciled in Cyprus, went through the ceremony of a civil marriage with the respondent, in England on the 9th December, 1960, while he was temporarily there, for purposes of studies. The other party to the marriage - (the respondent in these proceedings) - was a Cypriot girl domiciled in England and living there with her parents. Both parties profess the Greek Orthodox faith and are members of the Greek Orthodox Church.
The marriage was consummated, the parties having cohabited as husband and wife for several months in England, prior to the husband's return to Cyprus in July, 1961. While still in England, the husband abandoned the wife; and when she followed him to Cyprus, he refused to have anything to do with her.
A few months later, in December, 1961, the husband took the present proceedings for nullity, on the ground that at the time of the marriage, being an infant of nineteen years and nine months old, he could not contract a valid marriage in England, without his father's consent, which was not given for this marriage. The document purporting to give such consent, produced at the Register Office for the solemnisation of the marriage, "was false and untrue", the petitioner alleges, in paragraph 7 of the petition.
In her answer the respondent denies this allegation and in any case disputes the jurisdiction of this Court to deal with the petition.
The importance of knowing whether a valid marriage subsists between them, as far as the parties are concerned, requires no emphasis; and it is, moreover, a matter of considerable public interest to the community as a whole.
The validity of a marriage in a case such as this, is a matter of local law as well as of private international law. Here in Cyprus, it appears to present special difficulty owing to certain provisions in our Constitution.
Complications arising from the distinction between what is usually described as a civil marriage, on the one hand, and a church marriage on the other, are not peculiar to Cyprus. They exist in all countries where the State Church, or a Church operating in the State, claims the right to administer and apply law relating to the marriage of its members, different to, or not in line with the marriage-law of the State.
I do not propose entering into such complicated questions in this case any more than it is necessary to decide the issue in hand. Numerous cases of this nature, which find their way to the English Courts from time to time, sufficiently illustrate the difficulties. (Cheshire, Private International Law, 5th Edtn. 337-390).
I shall approach the question of jurisdiction, first with the law as it stood before the establishment of the Republic and then I shall proceed to deal with the position as affected by the Constitution.
Section 20 of the Courts of Justice Law, in force prior to the Republic (Cap. 8) provided the Supreme Court of the Colony of Cyprus with "exclusive original jurisdiction" in matrimonial causes (including petitions for nullity) subject to the exceptions in sect. 34 of that law, which saved the existing jurisdiction of the ecclesiastical tribunals in certain matrimonial causes; and the jurisdiction of the Turkish Family Courts in the matters prescribed in the section.
The relative part of sect. 34 reads:-
"34.nothing in this law contained-
(a) shall confer upon any court by this Law established, any jurisdiction to hear and determine-
(i) any matrimonial cause where-
(aa) either party is a member of the Greek Orthodox Church and the marriage has been celebrated in accordance with the rites of the Greek Orthodox Church, or
(bb) either party is of the Moslem faith and the marriage.
(ii) any other matter which under the principles of Ottoman, law. was cognizable by an ecclesiastical tribunal of the religious community to which the parties belonged;
(iii) any matters which. are within the jurisdiction of the Turkish Family Courts
(b) shall be construed as abrogating any jurisdiction which an ecclesiastical tribunal of the Greek Orthodox Church may possess in respect of matrimonial causes to which a member of the Greek Orthodox Church is a party".
It is, therefore, clear that the present petition, not being a matrimonial cause in a marriage celebrated in accordance with the rites of the Greek-Orthodox Church, does not fall within the exception in s.34(a)(i)(aa) ; or within ally of the other exceptions in s. 34. It is, moreover, admittedly, a matter which the ecclesiastical tribunals of the religious community to which the parties belong, would decline to deal with; would take no cognizance of.
Being a matrimonial cause outside the exceptions in sect. 34, the petition clearly falls, in my opinion, within the jurisdiction conferred on the Colonial Supreme Court of Cyprus by sect.20 of the Courts of Justice Law in force prior to the establishment of the Republic. And the parties would be entitled to have recourse to that jurisdiction.
On the establishment of the Republic, the Constitution became its "supreme law" (art. 179.1); and all other law preserved in force, had to be read, construed, and applied in conformity with the Constitution - (art.188).
Article 152 provided for the establishment of this Court, to exercise, together with such inferior courts as would be provided by a new Courts of Justice Law to be made by the legislature of the Republic within a specific period (art.190) the Judicial power in the Republic, other than that exercised by the Supreme Constitutional Court under part IX of the Constitution, and by such communal courts as would be provided by a communal law to deal with civil disputes and religious matters, reserved for the Communal Chambers under article 87.
Moreover, article III provided that "subject to the provisions of the Constitution", matters relating to marriage, divorce and other cognate matters described in the article, of members of the Greek-Orthodox Church or of other religious groups in the Republic, shall be governed by the law of the Church of such religious community or group, "and shall be cognizable by a tribunal of such Church; and no Communal Chamber shall act inconsistently with the provisions of such law", the article concludes.
Article 155.1 provided that this Court, in its own sphere of jurisdiction, is to be the highest appellate court in the Republic; and, moreover, paragraph 2 of the same article, vested the Court with such "original and revisional jurisdiction as. may be provided by a law" of the Republic.
The position resulting from the combined effect of these provisions in the Constitution is, in my view, that the judicial power in the Republic is vested in this Court (and such inferior courts as are established by the appropriate law) excepting for such matters as fall within the exemptions made by art.152 of the Constitution. And these are the matters in respect of which the judicial power is exercised by the Constitutional Court under Part IX of the Constitution, and matters in respect of which the judicial power is exercised by communal courts, established by the Communal Chambers under art.87.
To the courts so "assigned to him by or under the Constitution", every person has a constitutional right of access, article 30 expressly provides. And such right is one of his fundamental rights and liberties in Part II of the Constitution; and its nature is further amplified by other provisions in article 30.
It would, therefore, appear that the whole field pertaining to the administration of justice, and the right of access there to was fully covered by the Constitution even without art.111. Indeed the absence of any provision in the constitution regarding, the matters described in art.111, as far as the Turkish Community is concerned, lends support to this view.
Article 111, however, is part of the Constitution, and it must be given effect to. Not as a solitary and independent provision ; but read in the context of the part where it is found ; and read together and subject to other relative provision in the Constitution, considered as a whole.
It is found in Part V dealing with the Communal Chambers. And it follows article 110, which was obviously intended to preserve to the Autocephalous Greek-Orthodox Church of Cyprus, continuity of its right to regulate and administer its own internal affairs and property, in accordance with the Holy Canons and its Charter, to the exclusion of the Greek Communal Chamber, which "shall not act inconsistently with such right", in exercising its powers under art.87.
It must he noted in this connection, that art.110 extends similar protection to the institution of Vakf and of Laws and Principles relating thereto, from interference on the part of the Turkish Communal Chamber. And preserves similar continuity of rights with regard to religious matters, possessed by the Church of all other "religious groups", at the time of coming into operation of the Constitution.
Moreover in connection with articles 110 and 111, one must bear in mind that although administratively, the Greek- Orthodox Church of Cyprus is Autocephalous and independent, dogmatically and canonically, as far as I can say, it is an integral and inseparable part of that widely spread and ancient religious institution, known for over a thousand years now, as the Greek-Orthodox Church, to distinguish it from the Roman Catholic Church, in the times when the clergy started dividing Christianity into separate Churches.
The Greek-Orthodox, church of Cyprus, autocephalous, and administratively independent, as it may be dogmatically and canonically, it is only a very small part of the Greek- Orthodox Church with its Patriarchs, Archbishops and Bishops, in most parts of the old and the new world, where questions of marriage and divorce of persons belonging to that Church, are regulated by local, and by private international law.
Coming now to article III, I must observe that the opening words of this article, make it directly "subject" to the Constitution; and that its provisions appear to be primarily intended to regulate the "law" applicable to the matters therein stated. As far as the members of the Greek-Orthodox Church are concerned, regardless of what part of the world they come from (Cypriots or otherwise), matters relating to marriage, divorce and the other family relations stated in the article, "shall he governed by the law" of the Greek-Orthodox Church. And as far as members of other "religious groups" are concerned, such matters shall be governed by the law of the Church of the respective religious group, as the case may be; "and shall be cognizable by a tribunal of such Church", the article goes on to say. And no Communal Chamber shall act inconsistently with the provisions of such Church-law.
I read this article to mean that in exercising their powers under Part V of the Constitution, and in particular under art.87, the Communal Chamber concerned, shall not legislate, or in any other way act "inconsistently" with the law of the Church of any religious group affected by such legislation or act of the Communal Chamber, regarding the matters enumerated in art.111. And where there is a tribunal of such Church, ready to take cognizance of the matter, such tribunal shall have power to do so; and the matter shall be cognizable by such tribunal.
It would seem that the draftsman of the Constitution, assumed that besides the existing tribunals of the Greek - Orthodox Church of Cyprus, known as the ecclesiastical courts, the Church of each religious group, had, or should have, similar tribunals ready to take cognizance of such matters. But he does not appear to have contemplated the position arising when there was no such tribunal; or, where the matter affected persons belonging to different religious groups Surely such persons do exist in the Republic, having an equal constitutional right to justice according to law, before the appropriate Court, in all the important matters enumerated in art.111.
In a recent case before this Court, Poutros v. Poutros (Matr. Petition 12/1961) a Greek-Orthodox Cypriot wife and mother of four minor children, sought restitution of conjugal rights, and, in default, maintenance for herself and her infant children, against her Maronite Roman-Catholic Cypriot husband and father of her children. Counsel on both sides informed them Court that neither the ecclesiastical Courts of the Greek-Orthodox Church, nor the Maronite Catholic Church would take cognizance of the matter (or were even inclined to look into the problem) because it arose in a civil marriage; a marriage perfectly legal according to the law in force at the material time, but not recognized by either Church. Were those parties to be told that they could riot pursue or vindicate their rights (so vital and important as they happened to be), because no Church tribunal recognized them? Nobody thought of ever making such a suggestion. Art.22 appears to attempt an answer to the problem; but neither counsel in Poutros case seemed to have found any help in such completely new provisions in our law relating to marriage; provisions which, I am afraid, will prove very difficult to apply in practice. So counsel piloted their case into the known course before this Court, by-passing the complications arising from art.111.
Now this article (111) has been the subject of discussion before the Supreme Constitutional Court, in case No.128/61 between Myrianthi Tyllirou and her husband, Charalambos Tylliros. The constitutionality of sect.40 of the Courts of Justice Law, 1960, was challenged by the respondent in a maintenance application before the District Court of Nicosia (Maint. Application 83/61) and the court reserved the question for the decision of the Constitutional Court. under art. 144.
Regardless of the merits of the question so reserved, and of the correctness of the title showing a recourse under art.146, the Constitutional Court had this to say regarding art. 111, at p.4 of the Decision:-
"In the opinion of the Court the effect of art.111 is to take out of the competence of the respective Communal Chamber, the matters specified therein, and which ordinarily would have been within such competence".
And further down in the decision, the opinion is expressed that—
"art. 111 was intended to preserve, and not to extend, the competence of the Ecclesiastical tribunals of the Greek-Orthodox Church, as exercised at the time of the coming into operation of the Constitution".
One could, perhaps, wonder how will this article affect the position of non-existing at the time, but apparently contemplated, Church tribunals of other religious groups?
The new Courts of Justice Law (No.14/1960) enacted by the Republic in December last, provides in section 19 (b) that this Court. "shall. have exclusive original jurisdiction" in relation to matrimonial causes and matters connected thereto ; and in the exercise of such jurisdiction shall have such
"powers as were, before Independence Day vested in or exercisable by the Supreme Court of Cyprus" under the former Courts of Justice Law,
"save where a matrimonial cause is, under art.111 of the Constitution, cognizable by a tribunal of a Church or by a court established by a communal law under art.160 of the Constitution."
As there can be no doubt that the Supreme Court of the Colony of Cyprus had jurisdiction to entertain the present proceeding for nullity of a civil marriage, (a proceeding not cognizable by a Church tribunal) the only other matter calling for decision in this case is the submission of counsel for the respondent, to the effect that the wife's English domicil before the marriage, brings this case within the jurisdiction of the English Courts;
The parties' domicil is the factor which ordinarily decides the question of jurisdiction in matrimonial causes. And a married woman's domicil is that of her husband's This is clear and undoubted in English law, which by virtue of art 188 of the Constitution, is the law in force in Cyprus now on the point In the 5th Ed (1957) of Prof. Cheshire's Private International Law at p. 186 one reads:-
"The domicil of a husband is communicated to his wife immediately upon the solemnization of the marriage, and according to English law, it is necessarily and inevitably retained by her for the duration of the coverture".
In the 7th Edition (1953) of Rayden, on Divorce, one finds the same position at p 41, under the heading "Married Woman's domicil".
The husband's domicil alone, in this case, would give jurisdiction to this Court to entertain the petition. What one can say for the respondent, is that, in a petition for nullity, the English Court, as that of the wife's ante-nuptial domicil and of her present residence, may also have concurrent jurisdiction.
The position in this respect is summarised in the same edition of Rayden, on Divorce, at p.48 under the heading "Nullity of Marriage"—And at p.47 under the heading "Domicil" where one reads:
"The Court has jurisdiction to entertain a suit for nullity where both parties are domiciled in England at the commencement of the suit; this is an application of the general principle of private international law that the court of the domicil of the parties has a claim superior to all other Courts to determine the status of the parties, and that the decree of such a Court must be accepted as valid all other Courts; but such jurisdiction is not an exclusive one".
This matter of jurisdiction in cases of nullity of marriage is also authoritatively dealt with in the 7th Edition of Prof. Dicey's Conflict of Laws at p.345 et seq. And was quite recently the subject of authentic opinions in the House of Lords in Ross-Smith v. Ross-Smith reported in the Weekly Law Reports 1962—(2, W.L.R. p.388) where the cases on the question of jurisdiction founded on the place of the celebration of marriage, for over a century, were reviewed and considered in speeches covering about 50 printed pages.
Taking the law from these authentic sources, I reach without any hesitation the conclusion that this Court has jurisdiction to entertain the petition in hand; and that such jurisdiction is not affected by the provisions of art. 111 of the Constitution.
This jurisdiction of the High Court was recently exercised in Wallis v. Wallis (Matr. Pet. 8/61), and in Jasonos v. Jasonos (Matr Pet 14/61) where Josephides J held that "the marriage not having been celebrated by the Greek-Orthodox Church, this is not a case in which under art 111 of the Constitution, the ecclesiastical tribunal of the Greek-Orthodox Church would have exclusive competence. It is one of those cases which are covered by the provisions of sect. 19 of the Courts of Justice Law 1960, giving jurisdiction to this Court".
From the point of view of hardship, which is another factor to be taken into consideration in cases of this nature, the issue whether the parental consent required in this case, was, or was not, a false document, would also seem to point in the direction of a trial in this country.
On the 19th December 1960 the High Court made directions under art. 155(2) to the effect that each member of the Court, except the President, may exercise the original jurisdiction of the High Court sitting alone, subject to the provisions of art. 159 of the Constitution.
In the exercise of such jurisdiction and for the reasons stated in this judgment, I decide the question in issue, in the affirmative; with costs in cause.
Question of jurisdiction decided
in the affirmative.