Supreme Court dismisses divorce petition due to ecclesiastical jurisdiction over mixed religious marriages.

[*685] 1971 May 31

(JOSEPHIDES, J.)

MATRIMONIAL JURISDICTION

Androulla Antoniou Michael then

Androulla Achillea Chrysostomou,

Petitioner,

v.

Antonios Michael,

Respondent.

(Matrimonial Petition No. 8/67).

Matrimonial Causes - Jurisdiction - Marriage between a member of the Greek Orthodox Church and a member of the Maronite Church, in accordance with the rites and ceremonies of the Greek Orthodox Church - Preceded by a civil marriage under the Marriage Law, Cap. 279

- Matrimonial Cause between the parties is, under Article 111 of the Constitution, cognizable by the ecclesiastical tribunal of the Greek Orthodox Church - Jurisdiction of the Supreme Court ousted under the express provisions of s. 19(b) of the Courts of Justice Law, 1960.

Matrimonial Causes - Decree of divorce by Ecclesiastical Tribunal of the Greek Orthodox Church - Whether it terminates the status of husband and wife in cases where religious marriage was preceded by civil marriage.

Constitutional Law - Matrimonial Causes - Articles 22 and 111 of the Constitution.

A. Paikkos, for the Petitioner.

The Respondent was not represented.

JUDGMENT

The following judgment was delivered by:-

JOSEPHIDES. J. : This case raises once more the interpretation of Articles 22 and

111 of the [*686] Constitution which have in the past given rise to complicate questions affecting personal status of citizens of the Republic.

This is an undefended wife's petition for divorce on the ground of cruelty. The respondent husband, although duly served, did not put in an appearance nor was he represented at the hearing of the case.

The parties went through a ceremony of marriage at the District Office in Limassol on the 29th May, 1965, under the provisions of the Marriage Law, Cap. 279. On the following day, the 30th May, 1965, they went through, a religious ceremony of marriage in the Greek Orthodox Church of Ayios Antonios in Limassol, in accordance with the rites and ceremonies of that Church.

At the time of the marriage the wife, who was a seamstress, was aged 25, and the husband was a mechanic aged 21. The wife is a Greek Cypriot and a member of the Greek Orthodox Church, while the husband is a Cypriot and a member of the Maronite Church. They were both born in Cyprus of Cypriot parents and had always lived in Cyprus. They are both citizens of the Republic and the husband is domiciled in Cyprus.

The first question which I have to decide in the present case is whether this Court has jurisdiction to hear and determine the present case.

The relevant statutory provisions are the following: [*687]

(1) The Cyprus Courts of Justice Law. 1960, section 19(b) which reads as follows:

"19. 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 111 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 including power to make orders for alimony whether pendente lite or after judicial separation, maintenance upon a decree of dissolution or of nullity, maintenance of children and periodical payments in suits for restitution of conjugal rights and such other powers as were before Independence Day, vested in or exercisable by the Supreme Court of Cyprus under the Law repealed by this Law:"

(2) Article 22, paragraphs 1 and 2, of the Constitution, which read as follows:

"Article 22

1. Any person reaching nubile age is free to marry and to found a family according to the law relating to marriage, applicable to such person under the provisions of this Constitution.

2. The provisions of paragraph 1 of this Article shall, in the following cases, be applied as follows:-

(a) if the law relating to marriage applicable to the parties as provided under Article 111. is not the same, the parties may elect to have their marriage governed by the law applicable to either of them under such Article; [*603]

(b) if the provisions of Article 111 are not applicable to any of the parties to the marriage and neither of such parties is a member of the Turkish Community, the marriage shall be governed by a law of the Republic which the House of Representatives shall make and which shall not contain any restrictions other than those relating to age, health, proximity of relationship and prohibition of polygamy;

(c) if the provisions of Article 111 are applicable only to one of the parties to the marriage and the other party is not a member of the Turkish Community, the marriage shall be governed by the law of the Republic as in sub-paragraph (b) of this paragraph provided:

Provided that the parties may elect to have their marriage governed by the law applicable, under Article 111, to one of such parties in so far as such law allows such marriage."

(3) Article 111, paragraph 1, of the Constitution, which 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 precisions 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 may be, and shall be cognizable by a tribunal of such Church and no Communal Chamber shall act inconsistently with the provisions of such law."

It will be observed that section

19(b) of the Courts of Justice Law, 1960, provides that the jurisdiction [*689] of this Court is excluded where a matrimonial cause is, under

Article 111 of the Constitution, cognizable by a tribunal of a Church. Consequently, the question which falls for determination is whether this matrimonial cause between the parties is cognizable by a tribunal of a Church, in this case a tribunal of the Greek-Orthodox Church.

As already stated, the wife is a citizen of the Republic and a member of the Greek-Orthodox Church and the husband is likewise a citizen of the Republic and a member of the Maronite Church, that is, of a religious group to which the provisions of paragraph 3 of Article 2 of the Constitution apply, as well as the provisions of Article 111.

Article 111 provides, inter alia, that matters relating to marriage and divorce of members of the Greek-Orthodox Church, or of a religious group as defined above, shall be governed by the law of the Greek-Orthodox Church or of the Church of such religious group, as the case may be, and shall be cognizable by a tribunal of such Church. The other relevant article of the Constitution is Article 22, paragraph 1, which provides that any person reaching nubile age is free to marry and to found a family according to the law relating to marriage, applicable to such person under the provisions of the Constitution. This provision, it will be noted, is modelled on Article 12 of the European Convention on Human Rights (1950) which followed the provisions of Article 16 of the Universal Declaration of Human Rights. [*690]

Paragraph 2(a) of our Article 22, which applies to mixed marriages, provides that if the law relating to marriage

applicable to the parties as provided under Article 111 is not the same, the parties may elect to have their marriage

governed by the law applicable to either of them under such Article. It would seem that in the present case although the parties went through a civil marriage, they elected to have their marriage governed by the canon law applicable to the wife, that is, the canon law of the Greek-Orthodox Church, and they went through a religious ceremony in that church.

In order to decide whether the matrimonial cause between the parties is cognizable by a tribunal of the Greek-Orthodox Church, I received the expert evidence of a lawyer who is conversant with the canon law of that Church and who has been practising before the Ecclesiastical tribunals of the Greek-Orthodox Church in Cyprus for the past 40 years. That is, the evidence of Mr. Georghios Haji Minas, advocate, of Nicosia, who has been practising since 1929. He expressed the view that the jurisdiction of the Greek Orthodox Ecclesiastical Tribunals in Cyprus is governed by Articles 15 and 16 of the Ecclesiastical Tribunals’ Code of Procedure, which read as follows:

"15. Εις την δικαιοδοσίαν των

Δικαστηρίων υπάγονται πάσαι αι υποθέσεις μνηστείας, κύρους του γάμου, λύσεως

του γάμου, ή προσωρινού χωρισμού των συζύγων και πασών των νομίμων τούτων

συνεπειών." [*691]

"16. Τα Δικαστήρια θεωρούνται

αρμόδια επί των εν τω άρθρω 15 υποθέσεων προσώπων, άτινα ετέλεσαν τον γάμον

αυτών εν Κύπρω δια της Ορθοδόξου Ελληνικής Εκκλησίας ή εν τη αλλοδαπή ομοίως,

κατοικούσι ο εν Κύπρω το τελευταίον προ της ενάρξεως της διαδικασίας

έτος."

It will thus be seen that under Article 15 any cause relating to betrothal, nullity of marriage, divorce or judicial separation, is within the

jurisdiction of the Ecclesiastical Tribunals. Article 16 provides that the provisions of Article 15 apply to persons who

had their marriage solemnized either in Cyprus or abroad by the Greek-Orthodox Church and who reside in Cyprus for one year prior to the commencement of the proceedings before such tribunal. On the evidence before me I am satisfied that both parties are resident in Cyprus.

Mr. Haji Minas was further of the view that the Ecclesiastical Tribunal of the Greek-Orthodox Church is competent to hear the present matrimonial cause between the parties and grant a decree of divorce if either spouse is able to prove one of the grounds of divorce provided under Article 75 76 of the Charter of the Greek-Orthodox Church of Cyprus; and the ground of cruelty is one of the grounds provided in those articles.

I have also tried to form my own

conclusion by scrutinizing the canon law and procedure referred to by Mr. Haji Minas (see Halsbury’s Laws of England, third [*692] edition, volume 15, pages 329-330, paragraph 600; and Qureshi v. Qureshi (P.D.A.) (1971) 2 W.L.R, 518, at page 536, per Sir Jocelyn Simon P.), particularly as their language is Greek and I am in a position to construe them myself in accordance with our rules of construction. Having done so I have formed my own conclusion thereon and I am satisfied that the expert's evidence is correct and I accept it.

It follows that, in ray judgment, as the matrimonial cause between the parties is, under Article 111 of the Constitution, cognizable by the ecclesiastical tribunal of the Greek Orthodox Church, the jurisdiction of this Court is ousted under the express provisions of section 19(b) of the Courts of Justice Law, 1960, and I cannot, therefore, hear and determine the present petition.

There is, however, a further point for consideration and it is this: Will the decree of divorce of the Ecclesiastical Tribunal dissolve the status of marriage considering that a civil marriage was solemnized between the parties one day prior to the religious marriage? I think that the answer is in the affirmative. There is a case on the point which I have found very helpful in deciding this matter and that is the case of Peters v. Peters which was decided by Wrangham J. in the Probate, Divorce and Admiralty Division in England on the 19th March, 1968. I could not trace this case in the Law Reports or any other series of law reports but, having enquired from the Rt. Hon. President of that Division, I am assured that the [*693] report in "The Times" of the 20th March, 1968, (which I have before me), reproduces substantially the judgment of Wrangham J. I also had occasion to refer to a brief report of this case in the Solicitors' Journal (1968), volume 112, page 311.

In the. Peters’ case the parties were Greek Cypriots and they were married first at St. Pancras register office in March 1960, and at the Greek-Orthodox Church, Bayswater, in June 1960. The wife was born and had always lived in London, the husband was born in Cyprus, and they were both members of the Greek-Orthodox Church, At all material times the husband was domiciled in Cyprus, where he lived at the time of the hearing of the case. The marriage

was a failure and the parties separated in April, 1961. In September 1962 the parties went to Cyprus together in an unsuccessful attempt to

save their marriage, the wife returning to England in November 1962. The. husband petitioned for divorce in the Ecclesiastical Court of the Archbishopric of Cyprus, that being, according to Cypriot law, the only court with jurisdiction over the parties’ marriage. A decree of divorce was given to the husband by the Ecclesiastical Court in Cyprus in November 1964, and the wife sought a declaration from the English Court that such decree had validly dissolved her marriage which was celebrated first at St. Pancras register office and later at the Greek-Orthodox Church, Bayswater.

According to "The Times" law report, supra, Wrangham J. is reported to have said: [*694]

"A judgment of that court (the ecclesiastical court) in November, 1964, declared the marriage dissolved. That could only mean that the status of husband and wife that had previously existed between the parties had come to an end."

"Some confusion could be created if it was forgotten that the word 'marriage' concealed ambiguity and might be used to mean the ceremony of wedding and also the status which began on the conclusion

of the ceremony. As used in the judgment of the ecclesiastical court, ’marriage’ meant the status of husband and wife which was

derived in the view of that court from the religious ceremony. "

"But whichever ceremony gave origin to the status, it was the status itself that was terminated by the decree. As the Cyprus court had jurisdiction to terminate the status, its judgment ought to be recognized as valid. Accordingly, there would be a declaration that Mrs. Peters’ marriage had been validly dissolved. "

The report in the Solicitors’ Joumal (1968), volume 112, page 311, referred to earlier, reads as follows:

"WRANGHAM J. said that, by declaring the marriage of the parties dissolved, the judgment of the Ecclesiastical Court

could only mean that it terminated the status of husband and wife which had [*695] previously existed between the parties. Some

confusion could be created if it was forgotten that the word ’marriage’ could conceal ambiguity; it might be used to mean the

ceremony of wedding or the status which began on the conclusion of that ceremony. 'Marriage', as used in the judgment of the Ecclesiastical Court, meant the status of husband and wife which, in the view of that court, derived from the church ceremony; but, whatever it was that gave the status its origin, it was the status itself that was ended by the decree. As the Ecclesiastical Court had jurisdiction to dissolve the marriage, the court should recognise its decree as validly determining the petitioner's marriage. Declaration accordinly." (Reported by Miss Clare Noon, barrister).

I respectfully adopt the reasoning of the learned judge and I hold that a decree of dissolution that may be given by the Ecclesiastical Tribunal of the Greek-Orthodox Church of

Cyprus will not only dissolve the ceremony of the wedding but it will also dissolve the status of marriage, assuming, without deciding, that the

civil marriage in 1965, which preceded the religious ceremony, was also valid. Whatever it was that gave the status its

origin, it is the status

itself that will be ended by the decree of divorce which may be issued by the Ecclesiastical Tribunal which has jurisdiction to dissolve the

marriage. I would leave the question open whether the civil marriage solemnized [*696] at the Limassol District Office in 1965 was a valid one in view of the provisions of Articles 111 and 22 of the Constitution.

In these circumstances I hold that this Court has no jurisdiction to hear and determine the present petition.

Before concluding, however, I ought perhaps to state that, on the evidence adduced by the wife in the present case, including medical evidence, I am satisfied that the charge of cruelty against the husband has been proved and, if I had jurisdiction, I would have granted her a decree. The marriage was a failure right from the beginning. The husband ill-treated the wife. He broke the wife’s crockery and furniture in the house. He refused to work and sponged on her, and he never contributed anything towards her maintenance. He ceased sleeping with her and he was behaving peculiarly with a man friend of his. As a result of the husband’s horrible conduct towards her the wife suffered from anxiety neurosis and she had to undergo medical treatment.

In the result, as this Court has no jurisdiction in the matter, the petition is dismissed. No order as to costs.

Petition dismissed.

No order as to costs.