Cyprus Supreme Court grants divorce for desertion and child custody to wife despite husband's jurisdiction challenge.

[*359] 1970 April 3

(JOSEPHIDES, J.)

MATRIMONLAL JURTSDTCTION

Kyveli Panayiotou Dokidhou

otherwise Kyveli Georghiou Kazakou,

Petitioner,

v.

Panayiotis Dokidhes,

Respondent.

(Matrimonial Petition No. 13/67).

Matrimonial Causes - Jurisdiction - Divorce - Wife a citizen of the Republic and a member of the Greek Orthodox Church of Cyprus, ordinarily residing in Cyprus - Husband a Greek national and a member of the Greek Orthodox Church - Civil marriage solemnized at a Register Office in England - No religious ceremony - Jurisdiction of the Supreme Court not affected by Article 111.1 of the Constitution - Sections 19(b) and 29(2)(b) of the Courts of Justice Law, 1960, and section 18(1 )(b) of the English Matrimonial Causes Act 1950 - The case of Hji Jovanni v. Hji Jovanni (1969)4 J.SC.514 followed.

Constitutional Law - Article 111. 1 of the Constitution - It applies only where both parties are citizens of the Republic of Cyprus - Divorce proceedings - Desertion - Jurisdiction of the Supreme Court - See also under "Matrimonial Causes".

Private International Law - Family Law - Personal status - Husband and wife - Validity of marriage - Personal law of parties - Civil marriage between a member of the Greek Orthodox Church of Cyprus and a member of the Greek Orthodox Church solemnized at a Register office in England - Wife a citizen of Cyprus and husband a Greek national - Marriage not recognized as valid under the law of the husband's domicil or his personal law in Greece - Such provision in the husband's personal law offending intolerably against concept of justice prevailing in Cyprus [*360] and not accorded recognition - Marriage held to be valid in Cyprus - Article 111.1 of the Constitution.

Matrimonial Causes - Divorce - Desertion by husband without reasonable cause - Decree nisi granted.

Custody - Custody of the child - Wife looking after child properly and financially able to bring up the child - Husband not contributing towards maintenance of child - Custody of the child granted to the wife.

Jurisdiction - See under "Matrimonial Causes" - "Constitutional Law".

Conflict of Laws - See under "Private International Law".

M. Christofides, for the Petitioner.

The Respondent was not represented.

JUDGMENT

The following judgment was delivered by:

JOSEPHIDES, J.: This is a wife's petition for divorce on the ground of desertion. The respondent [*351] was duly served but he did not defend

the proceedings. He sent by post to the Registrar of this court a written statement denying the petitioner's allegations, the jurisdiction of this court and the validity of the marriage. But, although he was duly notified in writing by the Registrar, he failed to enter an appearance or file an answer to the petition and he was not represented at the trial.

The parties were married at the Register Office in the District of Sheffield, in the County Borough of Sheffield, in the United Kingdom, on the 15th June, 1957. At the time, the respondent husband was a divorcee, aged 32, and he is described in the marriage certificate, as a university student. The petitioner was a spinster, aged 30, and she is described as a "restaurant clerk, typist". There was no religious ceremony. The parties lived together in Sheffield from the 15th June, 1957, until April, 1959, when the husband left the United Kingdom. In November 1959 he was joined, by the wife in Cyprus where they lived together (except for a break) until about the end of August, 1962, when the husband is stated to have left for Greece and deserted the wife. He has not returned since. They have a child, Anthea, which was born on the 16th July, 1961.

The wife is a citizen of the Republic of Cyprus and a member of the Greek Orthodox Church of [*362] Cyprus. She was horn of Greek Cypriot parents and has lived all her life in Cyprus, except for a period of about 10 years, from 1949 to 1959, when she lived and worked in the United Kingdom. She also went there for a period of about four or five months in 1961 to give birth to the child. Since November, 1959, she has been ordinarily resident in Cyprus.

The husband is a Greek National and member of the Greek Orthodox Church. He lived and worked in Cyprus for a period of only three years, from the summer of 1959 until about the end of August, 1962. He is not domiciled in Cyprus and he is probably domiciled in Greece.

On the question of domicil this court would not have jurisdiction to entertain the present proceedings, but as the wife is ordinarily resident in Cyprus for a period exceeding three years this court has jurisdiction to entertain this petition under the provisions of the Courts of Justice Law, 1960, sections 19(b) and 29(2)(b), and section 18(l)(b) of the English Matrimonial Causes Act, 1950.

The next question which I have to consider is the effect, of Article 111, paragraph 1, of the Constitution on the jurisdiction of this court in the present proceedings. The marriage, as already stated, is a civil marriage. There was no religious ceremony and it would appear that the Ecclesiastical Tribunal of the Greek [*363] Orthodox Church of Cyprus has no competence to hear and determine a matrimonial cause between the parties (of. Article 16 of the "Procedure of the Ecclesiastical Tribunals", made by the Holy Synod of the Church of Cyprus). Consequently, I am of the view that the only court which has exclusive jurisdiction in the matter is this court: see, inter alia, the case of Kaprielian v. Kaprielian ( 1963) 2 C.L.R. 143, at pages 151 and 152. Another reason, which was given in Hji Jovanni v. Hji Jovanni (1969) 4 J.S.C. 514, at pages 526-7, for which this court has jurisdiction in such matters, is that Article 111 applies only where both parties are citizens of the Republic of Cyprus.

I have also considered the question of the validity of the civil marriage of the parties, which was solemnized in 1957 in England. I did so on the assumption that a marriage not celebrated in a Greek Orthodox Church would not be recognised as valid under the law of the husband's domicil, or his personal law, in Greece. But it has recently been held by this court in the Hji Jovanni case (supra) that this provision in the personal law of the husband would offend intolerably against the concept of justice prevailing in our courts and should not be accorded recognition (see page 528 et seq.). Several cases are quoted in support of that proposition, and the case nearest to the point is that of Papadououlos v. Papadououlos (1930) p.55, a summary of which is given at page 530 in the Hji Jovanni case. For these reasons [*364] I hold that the civil marriage between the parties, solemnized in England in 1957, is a valid marriage and that this court has jurisdiction to deal with the present case.

Coming now to the question of the desertion, I have heard the evidence of the wife and that of Mrs. Stella Vayanou who corroborates the wife's evidence in material particulars. I accept this evidence as true and I accordingly make the following findings of fact.

The parties first met in England some time in 1957 and, as already stated, they were married in June, 1957. It was an arranged match and not a happy one. This was not only a case of a clash of personalities but also of personal violence by the husband against the wife. They lived together after the marriage far about two years, until April 1959, when the husband, without any warning, left England. Some two or three months later she received a letter from Cyprus asking her to join him there. As she had a snack-bar business at the time she wrote back saying that she had to wind up the business, which she did, and she eventually joined him in Cyprus some time in November 1959.

At the time he was employed as a teacher at Polemi village. They lived for about a month together until the Christmas holidays in 1959 when they quarrelled because the husband wanted the wife to buy him a car. At the time of the incident they were in Nicosia and he left [*365] her saying "I am going to Polemi and if you do not give me money to buy the car I shall abandon you". In fact, he did go to Polemi at the end of the Christmas vacation (1959) and the parties lived apart until June, 1960, when they became reconciled and they lived together. Shortly after she became pregnant and, with the husband’s consent, she went to England to give birth to the child, and she stayed there between April and September, 1961. As already stated, the child was born on the 1,6th July, 1961 in Sheffield.

On her return from England in September, 1961, they lived together at Engomi and Ayios Dometios until 1962 when the wife rented a house at Platres and went there with the child to spend the summer. This was with the husband's consent, to whom the wife left her car, at his request, to enable him to visit the family at Platres; but, in fact, he never did so and he left Cyprus, never to return, at the end of August, 1962.

During the school-year September 1960 to June 1.961, he was employed as a teacher at Trikomo and the school-year September 1961 to June 1962 as a teacher at a private school in Kyrenia; but during the whole, of this period he lived together with the wife, either at Engomi or Ayios Dometios, as he was commuting to and from his place of work daily.

Reverting to the question of his departure from Cyprus, this is fully corroborated by the evidence [*366] of Stella Vayanou to whom he went and delivered the wife's car and stated that he was leaving Cyprus. After he left Cyprus he sent two letters to the wife, one in September or October 1962, and another in November or December 1962, but it is unfortunate that the wife destroyed these letters and she was unable to produce them to court. According to the wife, he did not give an address in any of his letters; and he wrote no other letter nor did he contribute anything towards the maintenance of the wife or the child ever since he left Cyprus.

On this evidence I am satisfied that the husband deserted the wife at the end of August 1962, without any reasonable cause, and that a decree nisi should be granted.

With regard to the custody of the child, I have before me the welfare report, which is very favourable as regards the wife. The net result is that she is financially able to bring up the child which is very happy with her, and that she is looking after it properly. Her present income is about £830 a year as a secretary. The husband has never contributed anything towards the maintenance of the child. I accordingly grant custody of the child to the wife.

In the result, decree nisi granted; custody order as above.

No costs are claimed. No order as to costs.