Foreign adoption not validized under Adoption Law is invalid; ex-parte application held premature and irregular.

[*425] 1972 February 19

(STYLIANIDES, AG. P.D.C., CHRYSOSTOMIS, AG. D.J. )

IN THE DISTRICT COURT OF LIMASSOL

In the matter of the estate of the deceased

Theofanou Marcou Christofi, alias Sofroniou,

Ex-Parte: Christodoulcs Michaelides, executor of the above deceased.

Applicant.

(Probate Application No. 162/71).

Adoption - Foreign adoption - Effected at a time when there was no law for adoption in Cyprus by adopting parents domiciled in Cyprus - And not legalised under section 30 of the Adoption of Children Law, Cap. 274 - Is not a valid adoption.

Conflict of Laws - Foreign Law - Not proved - Law applicable is the Law of Cyprus.

Administration of Estates - Practice

- Executor applying ex-parte, and before grant of probate, for determination of matters relating to adoption order - Application held to be premature and irregular in form.

Observations with regard to considering

(a) A departure from the Common Law when a useful purpose is to be served and

(b) whether the

draft convention of Hague of 1964 should be ratified by the Government of the Republic of Cyprus and receive statutory sanction.

S. Stavrinides, for the Applicant.

R. Michaelides, for the Respondents.

RULING

The ruling of the Court was delivered by:-

STYLIANIDES. AG. P.D.C.: Theofanou Marcou Christofi, late of [*426] Kato Polemidhia, who passed away in South Africa on 2nd July, 1971, left a last will and testament which was executed on 25th June, 1956 in Cyprus. Christodoulos Michaelides, an advocate of Limassol, is the named Executor in the Will. On the 2nd September, 1971 by Probate Application No. 162/71 he applied for probate.

Before the Will was proved, on 30.9.1971 by an Ex-parte application, purported to be based on section 53 of the Administration of Estates Law and the Civil Procedure Rules (Order 48, rules 1 & 2), he applied "for an order of the Court that and/or directions whether, the attached document of adoption dated 2.6.1947 was a valid adoption of Theofanou, nee Fanitsa Fanou Efstathiou, whose family name was Georghiou Kairinou, of Kato Polemidhia by the said Theofanou Markou Christofi, alias Sofroniou, late of Kato Polemidhia, and, therefore, the adopted is the only heir by virtue of the will and ab intestato."

The application was fixed on 2.10.1971. On directions of the Court it was served on all the persons who would be the lawful heirs of the said deceased if the document attached to the application is not a valid adoption. Two of the said persons opposed the application and pursuant to directions, affidavits were filed by the applicant and the two persons who opposed the application. [*427]

On the date of the hearing, 17.1.1972, the parties relied on their affidavits and made further statements as to the facts pertaining to this application, but cited no authorities.

The facts are not contested; they are simple and in brief are as follows: -

The said deceased was of Cyprus origin. She was born in this country and immigrated to Sudan. She married to Markos Christofi, a Cypriot; there were no children of that wedlock.

The deceased had a sister named Telemachia G.Kairinou, a Cypriot, who was residing in this country, the mother of Fanitsa Fanou Efstathiou, whose maiden name was Theofanou (Fani) Georghiou Kairinou. The child was born on 16.2.1938, at Polemidhia, Cyprus.

On 2.6,1947 the deceased and her husband signed the document (Exhibit 1) which is headed "Adoption". Their signature was attested by a District Judge of Khartoum District Court in the province of Khartoum, and the signature of that District Judge was certified by the High Court of Justice of Khartoum. This document was sent to Cyprus and was signed on the 3rd July, 1947 by the parents of the said child. Their signature was attested by a certifying officer of Limassol, The purported adopters and the adopted are members of the Greek Orthodox Church of Cyprus. [*428]

The child, after the due signing of the said document (Exhibit 1) left this country for Sudan where she stayed for some years with the purported adopters. Some time later all of them returned to Cyprus where they stayed for a considerable period.

Whilst in Cyprus, on 25.6.1956 the deceased executed the Will to which we referred earlier whereby she gave and bequeathed to her "niece" Fanitsa Fanou Efstathiou a house and a field; the residue of her immovable property she bequeathed to her heirs ab intestato.

In 1961 the said Theofanou and her husband - as in the mean time she married - immigrated to South Africa where she took with her the said deceased. The testatrix passed away in South Africa on 2.7.1971 leaving no husband, descendants or ascendants, but only two brothers, Stasis and Christodoulos, her sister Telemachia and the children - Alisavou and Lemetrakis Savva - of her predeceased sister Chrystalla.

Before dwelling on the substance of this application, we have to consider whether Christodoulos Michaelides was entitled to file this application and whether this application is proper in form .

In England an executor derives title from the will, and the probate relates back to the moment of the testator’s death. The assets of the estate vest in an executor from [*429] that moment. An executor may, therefore, begin to administer the estate even before obtaining probate, but, if any question should arise as to his action, it would be necessary to produce a grant of probate in order to show that he was entitled to act as he did. Though the executor derives his title from the will and not from the probate, yet probate is the authenticated evidence of the

executor’s title. (Smith v. Milles (1786) 1 T.R. 475; Whitehead v. Taylor (l839) 10 A. & E. 210; Halsbury's Laws of England, 3rd Ed. Vol. 16, p.132).

Section 25 of the Administration of Estates Law, Cap. 189, reads as follows: -

"From and after a grant of probate or of letters of administration with will annexed the rights and liabilities attaching to the estate of the deceased (including the statutory portion and the undisposed portion) shall be deemed to have vested in the personal representative from the date on which the deceased died."

Section 53 of Cap. 189 provides that personal representatives or any of them, creditors, devisees, legatees or next-of-kin, or persons claiming through such creditors or beneficiaries by assignment or otherwise, may apply to the Court by originating summons for the determination, without an administration in Court of the estate, of any [*430] of the following questions or matters:-

(a) any question affecting the rights or interests of the person claiming to be creditor, devisee, legatee, next-of-kin, or heir-at-law.

A personal representative means an executor or administrator. (Section 2 of Cap. 189)·

The Rules of Court, in force for the time being, relating to originating summons shall apply to all proceedings under section 53.

In the light of the aforesaid authorities, we are of the view that this application was -

(a) premature, and

(b) irregular in form.

Counsel appearing for the other side, however, stated that he waived his rights to oppose the application on formalities; that statement and the proceedings that followed remedied the irregularity in form.

We shall proceed, however, to consider the substance of the application. We consider it pertinent to give briefly the history of adoption and that part of the law on succession appertaining to adoption.

During the Turkish occupation, as it is borne out by the Act of Gul—Hane, 3.11.1839 and the Hatti Humaioun, [*431] 18.2.1856, if the deceased was a Christian, the Qadi first required a certificate from the Bishop, or other ecclesiastical authority enumerating the heirs left by the deceased and the distribution of the movables and immovables was based upon that certificate.

In a memorandum circulated to the several Powers on 13.5.1855 by the Grand Vizier, we read:-

"Special civil proceedings, such as those relating to succession or others of that kind between subjects of the same Christian or other non-Mussulman faith, may, at the request of the parties, be sent before the Councils of the Patriarchs or of the communities."

The status of a person was decided by the law of his Religious Community. The President of the Court of Larnaca in Phokion Tano and Evgenia Tano v. George Tano and others. 9 C.L.R. p. 100, said:-

"The Ottoman Civil Law seems to know nothing of adoption, but it may be that Ottoman Courts would recognise such a doctrine, if proved to exist in the ecclesiastical law of one of the subject races of the Empire, as applicable to persons of that race and faith, and if not in collision with some other law." [*432]

Adoption was recognised and practised by the Greek Orthodox Church of Cyprus. The Μέγα Ευχολόγιον of the

Orthodox Church contained a regular adoption service, the Ακολουθία της Υιοθεσίας. But adoption

became obsolete in Cyprus though ecclesiastically possible. The adopted children were recognised by the Religious Law of the Orthodox Church, and, therefore, by the Family Law of this island at the time.

The categories of children are distinguished in Armenopoulos. Νόμιμα τέκνα, νομιμοποιηθέντα, θετά, φυσικά. Θετά are the adopted children.

In 1884 the Inheritance and Succession Law was passed. By that Law, succession was regulated by creed. (Section 8), The Privy Council in Parapano & others/v.Happz & others 3 C.L.R. p. 69 held that by the Hatti Humaioun of 1856 and the Cyprus Statute Law of 11th April, 1884, succession was regulated by creed.

The Law of 1884 was repealed by the Wills and Succession Law, 1894 which was again repealed and substituted by the Wills and Succession Law, 1895, the Law which was in force until 1.9.1946.

In so far as this Law related to intestate succession it was based upon the law of Italy. Yet, in some cases it departed widely from its model, and made throughout a number of alterations designed apparently to adapt the principles [*433] chosen as the basis of the measure to the special circumstances of the country. It deliberately omitted Article 737 of the Italian Code which secured the rights of adopted children. In Phokion Tano & another v. George Tano and others, (supra) it was held that the inference was that under the Cyprus Law adopted children were not intended to have any rights at all. As no such children existed in Cyprus, it was not thought worth while to make provisions for them.

The Wills and Succession Law 26/45 which, with modifications, is Cap. 220 of the 1949 edition of the Statute Laws of Cyprus and Cap. 195 of the 1959 edition, made no provision about adopted children but restricted the inheritance to legitimate children. We are not concerned about illegitimate children who were now given the right to succeed their mother.

In July, 1954 for the first time by the Adoption Law, now Cap. 274, it became possible for an adoption order to be made by the Courts of this country on the application of a person domiciled in Cyprus, or who has been residing in this country for the last two years immediately preceding the date of the application.

The Adoption Law was passed to remedy the lack of any provision for adoption in our system of Law. (Vide Objects and Reasons in Gazette dated 12.5.1954). An adopted child [*434] was assimilated with regard to intestacy and wills to children born in lawful wedlock. (Ss 11 & 1 2). That Law provides for the requisites and the procedure to he followed for the making by a competent Court of an adoption order. The legislator did not disregard the Religious adoption. Section 4(5) (b) provides that where under the law of the Religious community of the adopter a religious ceremony is necessary, an adoption order shall not be made unless a certificate from the proper religious authority to the effect that such a ceremony has been gone through, is produced.

In this application it was arguably the named executor-applicant that by Exhibit 1 the said Theofanou was adopted by the deceased and her husband in Sudan at the time when adoption was not recognised and not possible by the law of this country. Is that adoption a valid one?

No evidence was adduced as to the Law of Sudan. Where foreign law is not proved, the Court applies the Law of this

country. There is no exception to this rule. (Dicey & Morris, The Conflict of Laws, 8th Edition, page 1119; Hulsbury's Laws of England, 3rd Edition, Vol.7 p. 6 & 176).

The principles of the conflict of laws in this country, which are found in the Wills and Succession Law, Cap. 195, follow the English Rules. Where there is no statutory provision, however, the principles of the [*435] English conflict of Laws, being part of the Common Law of England, are applicable in this country. (Patiki v. Patiki 20 C.L.R. pp. 36 & 59; Section 29(c) of the Courts of Justice Law 14/60) ·

According to the English Common Law, an adoption made in any other foreign country and valid by its law will be recognised in England if at the time of the adoption -

(a) the adopter was domiciled in such foreign country, and

(b) the adopter and the adopted person resided there.

(Dicey and Morris, the Conflict of Laws, 6th Edition . p. 461).

In Patiki v. Patiki (supra) it was held that adoption is governed by the law of the domicil of the adopter.

In Re Valentine's Settlement, Valentine & others v. Valentine & others (1965) 2 All E.R. p. 226, Lord Denning, M.R., at p. 230, had this to say:-

"Apart from international comity, we reach the same result on principle. When a court of any country makes an adoption order for an infant child, it does two things. (i) It destroys the legal relationship theretofore existing between the child and its natural parents, be it legitímate or illegitimate; (ii) it creates the legal [*436] relationship of parent and child between the child and its adopting parents, making it their legitímate child. It creates a new status in both, namely the status of parent and child. Now it has long been settled that questions affecting status are determined by the law of the domicil. This new status of parent and child, in order to be recognised everywhere, must be validly created by the law of the domicil of the adopting parent. You do not look to the domicil of the child; for that has no separate domicil of his or her own. The child takes his or her parents' domicil. You look to the parents' domicil only. If you find that a legitimate relationship of parent and child has been validly created by the law of the parents' domicil at the time the relationship is created, then the status so created should be universally recognised throughout the civilised world, provided always that there is nothing contrary to public policy in so recognising it, That general principle finds expression in the judgment of Scott, L.J., in Re Walker v. Luck. I think that it is correct, notwithstanding that the majority in that case created a dubious exception to it. But it is an essential feature of this principle [*437] that the parents should he domiciled in the country at the time: for no provision of the law of a foreign country will be regarded in the English courts as effective to create the

status of a parent in a person not domiciled in that country at the time; see Re Grove, Vaucher v. Treasury Solicitor (Legitimation by subsequent marriage), Re Wilson (deceased), Grace v. Lucas (adoption). I ought to say, however, that in order

for adoption to be recognised everywhere, it seems to me that, in addition to the adoption parents being domiciled in the country where the order is made, the child should be ordinarily resident there: for it is the courts of ordinary residence which have the pre-eminent jurisdiction over the child; see Re P. (G.E.) an infant)."

And, at page 231:-

"In my opinion, therefore, the courts of this country will only recognise an adoption in another country if the adopting parents are domiciled there and the child is ordinarily resident there."

Danckwerts, L.J. at page 233 said:-

"The law relating to the point which we have to decide cannot be

regarded as other than obscure and perhaps not yet fully, developed, and it is [*438] not made less confusing by the fact that domicil is

peculiarly a conception of English law, which is neither present nor understood in a number of countries who regard as important the law of nationality or residence."

And, futher down:-

"I reluctantly, therefore, have come to the conclusion that I must agree with the opinion of Lord Denning, M.R., that the courts of this country will only recognise an adoption in another country if the adopting parents are regarded by the law of this country as domiciled there."

What are the rights that a child, subject of a foreign adoption order, has in this country?

In Re Fletcher (deceased) Barclays Bank Ltd., v. Ewing and Others (l949) 1 All E.R. p. 732, it was held that an adopted child has the rights given to a child adopted under the Adoption of Children Act, 1926.

In Re Valentine' s Settlement (supra) Lord Denning at page 231 , said:-

"The correct solution is this: the child is to be treated in English Law just as if he or she had been adopted in England, no better and no worse." [*439]

And, Danckwerts, L.J., at page 233 said:-

"In any case I do not think that Re Wilby was rightly decided. The conclusion which I have reached is based on the general principles relating to the conflict of laws; see Dicey’s Conflict of Laws (7th Edition) at pp.460 and 461. I do not think that statutory provisions relating to the effect of adoptions made under procedure provided by an English statute can affect an adoption made pursuant to the law of some other country. We are not dealing with an adoption order made by an English court or under any English statute. In the same way, it seems to me that the powers of succession given on adoption by the law of some other country than England cannot really be decisive as to the interpretation to be given under a settlement to the word 'children' by an English court".

Salmon, L.J., at page 23b said:-

"I agree with the view expressed by Harman, J., in Re Marshall (deceased), Barclays Bank Ltd. v. Marshall, that if, at the date when the adoption order was made, the laws of the country where it was made conferred substantially full legitimacy on the adopted children, the children will be regarded as legitimate in England and within the designation of the word 'children' in an English disposition." [*440]

We now turn to the present case* What was the domicil of the deceased and her husband in 1947 when they executed Exhibit No. 1 ?

"Domicil is that legal relationship between a person (called the propositus) and a territory subject to a distinctive legal system which invokes the system as the personal law of the propositus and involves the courts of that territory in having primary jurisdiction with regard to his personal status and to disposition of his property. The relationship arises either, on the one hand, from the propositus being or having been, resident in such territory with the intention of making it his permanent home." (Henderson v. Henderson (1965) 1 All E.R. p. 179, per Sir Jocelyn Simon, P.on p. 180).

"A legitimate child automatically takes as his domicil of origin the

domicil which, at the moment of his birth, is his father's domicil." (Flynn v. Flynn (1968) 1 All E.R. p. 49 at p.52).

In Winans v. Attorney-General, (1904 - 1907) All E.R. (rep.) , p. 410 it was said:-

"Domicile of origin, or, as it is sometimes called, perhaps less accurately, domicil of birth, differs from domicil of choice mainly in this - that its character is more enduring, its hold stronger and less easily shaken off." [*441]

In Bell v. Kennedy, Lord Cairns, L.C.said:-

"The law is, beyond all doubt, clear with regard to the domicile of birth, that the personal status indicated by the term clings and adheres to the subject of it until an actual change is made by which the personal status of another domicil is acquired."

The onus of proving that a domicil has been chosen in substitution, for the domicil of origin, lies upon those who assert that the domicil of origin has been lost.

The deceased and her husband and the "child" were born in Cyprus of parents domiciled Cypriots, and their domicil of origin was Cyprus. They immigrated to Khartoum for a period but they returned to their native land where they resided for a considerable time. There is no evidence before us that they changed their domicil of origin and, therefore, at all material times all three of them were domiciled Cypriots. Their status is decided by the Law of their domicile. In 1947 there was no law in Cyprus for adoption.

The Adoption Law made provision for and gave two years time for de facto adoptions to be legalised (section 30). The Adoption Law came into operation, on 16.7.1954. As it is obvious from the date and the place of the execution of the will, the deceased, her husband and Theofanou were within the period of those two years residents of this country. They failed to avail themselves of the provision [*442] of the law, and if any injustice will be done to Theofanou, she has to blame herself and her purported adopters, and not the law of this country.

Furthermore, it is significant that Theofanou is described in the will not as a chiled of the testatrix but as her "niece". The said Theofanou Nee Phanitsa Phanou Efstathiou is not the adopted child of the deceased. She is only a niece and, therefore, she is not an heir of the deceased.

The heirs-at-law of the deceased are the brothers and sisters of the deceased, and the descendants of her pre-deceased sister living at the time of her death.

With regard to costs, however, we are of the view that the estate must not be burdened with the costs of this application. In all the circumstances of the case we make no order as to costs.

Before concluding, however, we wish to place on

record that in the Continental law and in the Greek law. Adoption is governed by the law of Nationality. (See Maridakis : Private

International Law, Vol. 2, para.47).

Accoeding to the draft Gonvention of Hague of 1964 which comprises 24 articles, jurisdiction to grant an adoption is vested in the authorities of the State where the adopter habitually resides or of which he is a national (Article 3).

They must apply the national [*443] law of the child relating to certain consents and consultations (Article 5). Subject

only to the safeguard of public policy (Article 15); every adoption governed by the Convention and granted by an authority having jurisdiction by virtue of the habitual residence of the adopter must be recognised without further formality in all contracting States; and the findings of fact on which that authority based its jurisdiction are binding (Article 8).

In an era when Europe moves forward to unification, it has to be considered whether the Convention of Hague should be ratified by the Government of the Republic of Cyprus and receive statutory sanction, The Common Law served the people of this country for a considerable time. We cannot, however, stick to the Common Law in all aspects of life in this country; a departure from it, when a useful purpose is to be served, cannot be excluded.

Order accordingly.