clr/1966/1966_1_283.pdf

(2)direct evidence of an eye-witness (rejected by the Court) ;

(3)evidence of opportunity and inclination (o a m o r o u s dalliance. 1966 Oct. 3, Dec. 5, 19, 30 EDWARD GFORGF BAILIE AND P A N Αγ IOTA The Court in granting a decree nisi : EDWARD GEORGE BAILIE Held, with regard to the question of jurisdiction doniicil of the petitioner (v/-. the husband) : (OTHERWISE PANAYIOTA PETROU)

(1)A child requires al birth a domicil of origin by opera­ AND tion of law, that is to say, if legitimate and born in his father's lifetime, the domicil of his father : Forbes v. Forbes STAVROS

(1854)Kay 341, al p. 3 5 3 ; Udny v. Udny

(1869)C.R.I.Sc. and Div. 441, al p. 457. The domicil of an infant cannot be changed by any act of his own, but it may be by an act of a person on whom il is dependent. The doniicil of a legitiniale infant follows any change in that of the father if liv­ ing : Sharpc v. Crispey

(1809)L.R. ! P. and D. 611. at p. 617 ; and other eases ending with Gulbenkian v. Ciufhcnkian |1'»37| 4 All- E.R. 618.

(2)Ί here is no doubt that until November 1951, when the father moved to Cyprus with his family the petitioner (then a boy o\' 8'/ ¥ years of age)'still ha J his Scottish or Irish domicil, and for the purposes of this ease it is immaterial which of lite t w o .

(3)Since his arrival in Cyprus (November, 1951) on the evidence before me, I would be inclined to the view that at the date when the petitioner came of age(/.e. 12th April. 1961) the father had acquired a domicil of choice and acquired a Cyprus domicil. But even il" the father had n o t " acquired a Cyprus domicil, on the evidence, I would b e . p r e p a r e d to find, 1 do so find, that in any event the petitioner has since attaining majority as aforesaid changed his domicil of origin and acquired a domicil of choice in Cyprus, and that at the date of the institution of the suit (viz. 18th November, 1965) he was domiciled in Cyprus.

(4)Kor these reasons I hold lh;it this C o u r t has jurisdiction to hear and determine the present petition. Held, as regards the issue of adultery adduced : 285 and the evidence N. FiLtppou '''"'^ K '' ( I ) (</) A s regards the conlession made by the icspondent 3 vulc t o police Constanblc l· , w h o was called as a witness in t h i s case, I have no d o u b t in my m i n d that i f his evidence L'H^AKO ''|nUf' *"lh d i d not refer to w h a t he d i d as a p o l i c e m a n i n u n i f o r m pur- p o l l i n g l o investigate i n t o the c o m m i s s i o n o l a c r i m i n a l of- i>A„UK(,A fence, that is to say, i f he was giving evidence as an o r d i n a r y ii,v\\ui) cili7en that the wife had v o l u n t a r i l y confessed to him her C-IOK ,i BAIIIF lO-iiiR'usi |i |,<<H ' » AND \ Ι Λ\ It' >S Ι Π M'l (I a d u l t e r y w i t h the co icspondent, his admissible evidence w o u l d be {!>) But in this case il is mamlest that b o t h the husband and the policeman behaved as t h o u g h the wife had c o m m i t ­ ted a c r i m i n a l ol fence I \en il that were so, it w o u l d have been Ihe dulv ol the police o l l i c e r l o have warned the wife that she was not b o u n d l o say a n y t h i n g in accusation made against answer to the hei (( ) Ι ,ιιη ol the view thai in this case the police o f f i c e r bona iulc, b u l inisguidedly exceeded his a u t h o r i t y under sections 4 avw\ 5 ol the C n n i m a l was no ollence ot Procedure Law. C a p suspected oflence undei the C n m i n a l (. ude ο ι any othei enai Intent icpoi ted to the Police il he 155, as there a n d . even was investigating such an o l l e n c e , it was h s d u t ) to i n f o i i n ihe w i l e that she was not b o u n d l o say a n v t h i n g (</) I a m , t h c i e l o r e . o l the view as at picsent advised, t h a i the p o l i c e m a n s evidence as to the w i l e s confession is m a d - m i s , i b l e o n ιhe g r o u n d thai such confession cannot be consiK icd a voluntaiy one

(2)As ,la led in Nu on \ Nu on ( i c p o i (cd in this vol itiiti) ihe C o u r t w i l l at ρ 106 ILIUSC lo act u p o n confessions alone unlc,s the >ui l o n n d i n g uietimslances indicate t h a t Ihe con­ lession is ιrue. < ', wheie the conlession is made b) a spouse w h o is a n x i o u s lor i o i g i v c n t s s , or by a wife w h o has every­ t h i n g to lose by suelt confession and in such cases the C o u i t may act u p o n a confession although u n c o i r o b o t a l e d

(1)II w i l l be seen thai in this case there was m u c h more than o p p o i i u n i t y . there was evidence o f i n c l i n a t i o n l o c o m ­ mit a d u l t e r y and willingness to indulge in a m o r o u s dalliance ( Λ κ on Nu ov supra, ai ρ 114)

(4)C o n s i d e r i n g the evidence adduced, except that w h i c h I n ive ι* jeeleJ, I f i n d that although, there is no d u e c l eviden­ ce ol i h i actual act of a d u l t e r ) , this tact mav be inferred f r o m the sin ιo u n c i ' i g ciicuiiislances which lead t o it, by fair m f e 286 rence, as a necessary conclusion. The surrounding circumsstances unmistakably indicate that the confession of adultery made by the wife lo the husband is true.· I accordingly find 1966 Oct. 3, Dec 5, 19, 30 EDWARD that the case for ihe petition has been proved. (il.ORljl . Meld, as to the question of custody of the children : ΗΑΙΙ.ΙΓ AND Ρ A NAV IOTA

(1)The only question left is the custody of the children. EDWARD GI.ORC.E BAH.II- The Court has to be satisfied as to the arrangements propo­ sed for the children before permitting the decree to be made (OrHERWISE P A N Αγ IOTA absolute. PEFROU) AND

(2)On the material before me I am not satisfied with the arrangements for the children and I proposed now to pro­ nounce a decree nisi and direct that the matter be dealt with subsequently by having the matter restored in the list, when ihc petitioner is ready for the necessary mateiial

(3)(

1. a)In the meantime I directed the preparation ol" a report by a. Welfare Officer to help the Court lo determine this question. (
2. b)When the petitioner is ready the matter is lo be res­ tored in the list and notice given to the wife of the day of the hearing and thai the husband" claims custody of both children. Decree nisi granted. Ihe respondent and the co-respon­ dent to pay the costs-of ihe petition. ('ases referred to ; Forbes v.'Forbes

(1854), Kay 341, at p. 353. Udny v. Udny

(1869)L.R.I.Sc. and Div. 441, at p. 457: Sharpe> v. Crispey

(1869)L.R. I P. and D. 611, at p. 617; Ciulbenkian v. Ciulbenkian [1937] 4 All E.R. 618; Nicoit v. Nicou reported in 1his vol. at p. 106 anle). Matrimonial Petition. Petition for dissolution of m a r r i a g e because of Ihc wife's adultery. Ph. Clerkles, Respondent for the p e t i t i o n e r . and co-respondent not appearing. Duly Cur. 287 served. adv. vult. STAVROS N. Fluppoe 1966 Oet 3, Dec 5, 19,30 1 DWAIID CiroKc.r BAII if· \ND PAN WIOTA f I)W ARD GKOR< ι BAILIT ( O n r i KWISF P A N \Υ Ι Ο Ί A P I IKDI ) The following judgment was delivered by. JOSCPHIDES, J This is a husband's undefended petition for divorce on the ground of adultery The parties were married on the llth April, 1961,by the District Officer of Nicosia, undei theprovisions of the Marriage Law,(ap 279 The petilioncr-husband was then 18 yeais oi ageandtheres­ pondent-wife 16years of age Thehusband is English and a member of the Picsbytenan C hutch, andthewife is a GreekCypnot and a member of the Greek-Orthodox C lunch of Cypius, but no religious ceicniony was celebrated »MI STAVKOS Ν 1ii n ΐ'οιι The fust question which tails to be determined is thehus­ band's domicil, as no decree on a petition for dissolution of marriage can be pronounced unless the husband is domiciled tn Cyprus On this issue 1have theevidence of the petitionei husband himself and his father, which I accept The petittoneι was boin m Cairo, Egypt, on the 12th April, 1943,v.hue his lather was stationed at the time as a member of the R A F The petitioner's mothei is a Gieek from Cairo Ihe petilioner's father was boin in Glasgow, Scotland, m November, 1914, and when he was about two-and-a-half yeai-> oldhe was taken to Belfast, Northern Ireland, where hewas adopted by relatives He lived there until 1936 when he joined the R A F , andtwoyears later hewas posted to Eg>pt where he served until 1947when he was released In Novembe· 1940 he married andhe hadtwochildren, oneof whom is the pe­ titionei Between 1947and 1948he served with the Futrean Police, British Military Administration, foi about nine months, and from May1948to June 1950he lived in Belfast with his family where he was employed m theCivί Service in 1950lie moved to Egypt with thefamily where he stayed until the /th Novembei, 195i, when he finally moved with the family, including the petitioner, to Cyprus Sum. then he has been hung and working without interruption in Cy­ prus. He woiked for a period of three years and three months, until March 1955,in the NAAFI Accounts Section in Nicosia, andin April 1955he was appointed as a locally employed civilian by the R A F in Nicosia where he worked until August 1961 and he was then transferred to Ipiskopi where he isstill woiking Hehas been residing in Messi Yitonia, Limassol, and he has always lived within the I i.nassol town area It is his intention to live permanently ιιCy­ prus, as he stated 288 When the petitioner came to Cyprus with his parents in November, 1951, he was 8% years old. He attended the Ses­ sions School, Nicosia, and the Terra Santa College Nicosia, between January 1952 and June 1960. In August 1960 he started working as an Assistant Mechanic in the R.A.F., stationed in Nicosia. While working he married respondent in April, 1961. He resigned his appointment as Assistant Mechanic in October 1961 and he was subsequently employed as follows. From December, 1961 to February, 1963, in the War Department Police ; from March 1963 lo November 1963, as part-time employee in the Decca shop, Episcopi ; from December 1963 to April 1964 with the Express Freight Company ; and since 20th July, 1964, he has been employed as a I''lying Steward by the Cyprus Airways Ltd., stationed N in Nicosia. Ever since his arrival in Cyprus in November, 1951, that is for the past 15 years, the petitioner has been living in Cy­ prus either in Nicosia or Limassol. He is the holder of a British Passport issued by the British High Commissioner in Nicosia, Cyprus, on the 12th June, 1964, and his national status is described in the passport as " British subject ; citi­ zen of the U.K. and Colonies". The present petition for divorce was filed on the 18th November, 1965, when the peti­ tioner was 22 yt years of age. Λ child acquires at birth ;t domicil of origin by operation of law, that is to say, if legitimate and born in his father's life­ time the doniicil of his father : Forbes v. Forbes

(1854), Kay 341, at page 353 ; Udny v. Udny

(1869), L.R.I.Sc and Div. 441 at.page 457. The domicil of an infant cannot be changed by any act of its own, bul it may be by an act of a person on whom it is dependent. The domicil of a legitimate infant follows any change in that of the father if living : Sluirpe v. Cfi.spey

(1869)L.R. 1 P. & D.'611, al page 617 ; and other cases ending with Gidbenkiatt v. Gulhenkian [1937] 4 All E.R. 618. There is no doubt that until 1951 when the father moved to Cyprus with his family he still had his Scottish or Irish domicil, and for the purposes of this case it is immaterial which of the two. Since his arrival in Cyprus, on the evi­ dence before me, I would be inclined to the view that at the date when the petitioner came of age the father had acqui­ red a domicil of choice in Cyprus. On that finding the petilioncr-son should al>o be deemed to have changed his domi289 1966 Oct. 3, Dec. 5, 19, 30 EDWARD GEORCF BAILIE AND PANAYIOTA EDWARD GEORGE BAILII(OTHhRWISE PANAYIOTA PETROU) AND STAVROS N. FIIIPIOU 1966 .. °V in o„ Dec \ iy, -JU ι IIWARD (n'mi.i HAIMI PASMIOJA Ι,.ΛΜΜ» <ΊΙΠΗ(.Ι livun l< > l l > 1 eil and acquired a Cyprus domicil But even it the father n o 1 d acquncd a Cyprus domicil, on the evidence I would be prepared to hnd, and I do so find, that in any event the petitionei h.is since attaining majority changed his domicil J 0 1 | g I M a n i j t | C C j U t r e d (1 domicil of choice in Cyprus, and 0 nil l n a t <lt l ie c llc t ie i n s l l l u l l o n tht s u l 1 ' ' * °' ' °f -* he v»<ts domiciled in Cyprus For these reasons I hold that this Couit has jurisdiction to hear and dclennine the present petition KWISI I'ANVMOIA 1'iMtour AN1> ' h e second question foi deleinunation is whether the rcspondettl-wile committed adultery with the co-respondent in the months of Septembei and October, 1965 ' WHIlS •"Ί,(" As already staled, the paitics were mairied on the l l t h Apnl 1%!, when the husband was 18 years ot age and the wile 16 He had known hci loi about three years but his parents would not consent to the marriage Subsequently the wile became, piegiiant and the husband's paienls consen­ ted to the marnagc and the fust child Diana Minerva was burn on the 1st August, 1961 The second child Ticdeiick lohn was boin on the 23id January, 1964 Allei ihcu m a n a g e ihc parlies lived at Ay Dhometios I mm Apnl to Decemhei 1%1, then they moved lo Limassol vvhcie the) lived until Apnl, 1964, when they Iclt Limassol and wciil to aside in I ngomi lot about three months In Jul) l n 64 the) moved to a house in 32, Aeleoeleous Street, A) Donieiios, wheic they lived together until the 5lh Novem­ ber, 1965, when the wife leil the matrimonial home taking with hci the youngei child Iredenck It is ihe husband's case that the wife committed adultery with the co-respondent in their house al 32, Actoeleous Street, A\ Dhometios, on several occasions during the months of September .uic\ O c t o h u , 1965 The evidence adduced in support of the t ise may be sub-divided into three categories

(1)ihe wife's confessions ,

(2)direct evidence of an eye­ witness , and

(3)oppoitunity I irsl, as to

(1)We have the evidence of the husband (pelitioiui) who slated that on the 5th November, 1965, ihc colespondent's wile, Maroulla Phihppou, taxed the wife with having sexual iclaiions with the co-respondent on many occa­ sions in the matrimonial home, in the absence fiom Cyprus ol the husband on duly , and she added that in October, 1965, she (Maioulln Phihppou) found her husband, the coicspondcnt, with the wife (respondent) in the petitioner's 2W house. ,yoi The h u s b a n d ( p e t i t i o n e r ) t h e n asked his w i f e w h a t she had t o say l o t h a t a n d she r e p l i e d " I love h i m a n d I a m ι • g o i n g t o leave y o u a n d g o v i l l i h i m t o E n g l a n d " . W h e r e - '" ' _ „ Dee. *, iv, 30 ' _ ',)WARU u p o n the h u s b a n d said t o the w i f e " s o y o u accent that y o u have been sleeping with h i m " , a n d she r e p l i e d U p o n t h i s he t e l e p h o n e d i h c Police at A ) . "Yes". Dhometios and ! \ C . 452 loannis Frangeskos arrived o n the spot. This wit- ne^s slated t h a t he was in p o l i c e u n i f o r m w h e n he visited the residence o f the p a r l i e s . I n the wife's presence the h u s b a n d said l o i h c p o l i c e m a n " m\ w i f e has a l o v e r a n d be a witness ' ι1 """'1 B A "" PANVHMIA Fi>w utu GLORI.I B A I L » tOrniRwisr PANΛνιοιΛ Pr.TRο ο as I w a n ! t o t a k e her l o C o u r t " , a n d he t h e n asked his w i f e w h e t h e r she has a l o v e r a n d she gave a reply w h i c h the p o l i - SIAVROS ceman took d o w n Ν. ΠΠΙΤΟΙ. in w r i t i n g in his n o t e b o o k T h a t reply IS a c o m p l e t e c o n f e s s i o n o\' a d u l t e r y w i t h the c o - r e s p o n d e n t . I h e p o l i c e m a n t h e n i n f o r m e d the h u s h a n d l a k e Ihc m a t t e r t o C o u r t h i m s e l f not take a n y a c t i o n , a n d he left. t h a t he because the should Police c o u l d A l a later stage o\' this j u d g ­ ment I shall c o n s i d e r the q u e s t i o n o f the a d m i s s i b i l i t y o f the policeman's I wo evidence neighbours, a mother and daughter ( K a i i n a Geoi- g h i o u P a p h i i i a n d M a t o P u p l n l i ) , gave evidence t o ihe effect t h a i , in c o n f i d e n t i a l c o n v e r s a t i o n s they had w i t h the w i l e o v e i c u p s o f c o f f e e a n d f o r t u n e - t e l l i n g b ) the witness K a t i n a , i h c w i f e a d m i t t e d h a v i n g illicit r e l a t i o n s w i t h the c o - r e s p o n d e n t a n d she e \ p r e s ' c d the i n t e n t i o n o f r u n n i n g a w a y f r o m the husband w i t h the. co-respondent lo England and taking the son w i t h her. T h i s was in A u g u s t o r S e p t e m b e r , 1965 I must say t h a t I was n o t very impressed w i t h these t w o witnesses a n d I d o n o t t h i n k t h a i t h i s is t h e k i n d o f e v i d e n c e t h a t m a y be ι d i e d u p o n b y a C o u r t in s c r u t i n i z i n g j e a l o u s l y a c o n f e s s i o n m a d e b y a spouse w h o desires t o be d i v o r c e d . But t h i s is n o t really very m a t e r i a l in the present case as t h e r e is o t h e r e v i ­ dence in s u p p o r t o f the case. A s stated in Ν icon \- Nicou ( r e p o r t e d in t h i s V o l . a l p. 106 ante) " t h e C o u r t w i l l refuse t o act u p o n c o n f e s s i o n s a l o n e unless t h e s u r r o u n d i n g c i r c u m s t a n c e s i n d i c a t e t h a t t h e c o n f e s s i o n is t r u e , e.g. w h e r e t h e c o n f e s s i o n is m a d e b y a spouse w h o is a n x i o u s f o r forgiveness, o r b y a w i f e w h o has e v e r y t h i n g l o lose b y such c o n f e s s i o n , a n d i n such cases the C o u r t m a y act u p o n a c o n f e s s i o n although uncorroborated ". A s regards the p o l i c e m a n ( P . C . 452 F r a n g e s k o s ) , w h o w a s c a l l e d as a witness i n t h i s case o n i h e q u e s t i o n - o f t h e w i f e ' s c o n f e s s i o n , I have n o d o u b t in m y m i n d t h a t i f his evidence d i d n o t refer t o w h a t he d i d as a p o l i c e m a n ^ i n u n i f o r m p u r 291 ',"Η' \!' '' LnwAKu GM.IU.IBM.I.' I^N'VUOIA ι I..\ A1( I> (iioRta iiAiin (OIIIIKWISI ΡΛ\\\ΙΟΙΛ 1*1 J H i H ' l SIAM-.OS Ν tiiiriOti porting lo investigate into the commission of a criminal offence, that is lo say, if he was giving evidence as an ordinary cili/xn that the wife had voluntarily confessed to him her adultery with the co-respondent, his evidence would be admis^ j b | e . h ( j l j j n l h | s c a s o | ( j s m a n i f e s t ! h a l b o | h t h c husband ;1IU ' l n c P o n c c n i u , > behaved as though the wife had committed 'i ciimiiial offence. Even if that were so, it would have been the duty of the police officer to have warned the wife that | not bound to say anything in answer to the accusa­ S 1C w ; l s tion made against her. The powers possessed by police officeis lo lake statements ftom persons are those laid down in sections 4 and 5 of the Criminal Procedure Law, Cap. 155, and it will be seen that those powers are only in respect of ihc investigation of an "offence" which is defined as an act, attempt or omission punishable under any enactment. 1 am of Ihe view that in this case the police officer bona fide bul ntisguidcdly exceeded his aulhoiity, as there was no of­ fence οι suspected offence under the Criminal Code or any other enacMiienl reported lo the Police ; and, even if he was investigating such an offence, il was his duty lo inform the wile thai she was not bound lo say anything. This question was not fully aigued before me but, as at present advised, in the eucumsianccs of this case, I am of thc view that the policeman's evidence as to the wife's confession is inadmis­ sible on the ground that such confession cannot be considered a ^ olunlai \ one

(2)Direct evidence of adultery : Before considering this evidence, il should be staled thai ihe husband, who has been employed as an An Stcvvaid with the Cyprus Airways since lulv 1964, used to fly on the Alhens-Ankara-lstanbul routes, atiu that during the material period he was absent from Cy­ prus on the nights of Tuesday, Wednesday and Friday every week He itsed lo sleep al home on ihe remaining four nights of the week The co-respondent is a police dog-handler at Athalassa and he was friendly with the husband having grown-up together in Nicosia The families were on friendly terms, so iltal the co-respondent was aware of the husband's movements. loannis ί fiaialambou.s, a Natrona! Guardsman, aged 18, who resided in the same house with the parties and had his room ue.st lo Ihe parlies' bedroom, gave evidence to the effect that Ihc co-respondent used to visit the wife in the house in the husband's absence from Cyprus very frequently in ihe months of September and October, 1965, and that he stayed 2'J2 in the house until late al night. He further slated that he saw the wife and the co-respondent in the bedroom naked on thc bed many limes. He saw them through an opening in thc door while he was passing on his way to and from his bedroom ; presumably he was peeping through thc opening.

(3)Evidence as to opportunity : The neighbour Katina and her daughter Maro stated that in September and October, 1965, they used to see the co-respondent arrive at Ihe house of the parlies frequently, soon after thc departure of the husband, and that he used to open the door with a key which he carried with him. On one occasion in October, 1965, these witnesses saw thc co-respondent jumping over the back fence of ihe house and running away at thc moment when thc husband was arriving at the house by car. In addition to these opportunities, there is also thc evidence' of the husband's father thai on one day in October, 1965, at about noon, as he was entering the living-room of his son's house unexpectedly he saw the wife and the co-icspondenl break away from an embrace. He pretended not to see and did not make any remark about il. A couple of weeks laicr as ihe same witness was coming in a taxi very near his son's house he saw the wife with Ihc co-respondent in a taxi with one o\' the children going away from the house. This witness has impressed me as a witness o\' truth and I have no hesitation ; n accepting his evidenceIt will be seen that in this case there was much more than opporlunity, then; was evidence of inclination to commit adulleiy and willingness lo indulge in amorous dalliance (Nicou v. Nictm, (supra), at page 114). Considering Ihe evidence adduced before the Court, except that which I have rejected, I find that although there is no direct evidence of the actual act of adultery, this fact may be inferred from thc surrounding circumstances which lead to it, by fair inference, as a necessary conclusion. The surrounding circumstances unmistakably indicate thai the confession of adultery ma'dc by the wife is true. I accordingly find that the case for thc petition has been proved, that is to say, thai the respondent-wife committed adultery with the co-respondcnl on many occasions in thc months of September and October, 1965. Thc only question left is the custody of the children. The Court has to be satisfied as to the arrangements proposed 293 Oct. 3, Dee. 5, 19, 30 EDWARD GEORGE B A I U L AND PANAYIOTA EDWARD GEORGE BAILIE (OTHERWISE PANAYIOTA PKIROU) AND STAVROS N . FlLIPPOU 1966 °? 10 in i.mvARD CiroRf,i· HAUIC I»\N\YIOI\ II'WAUI) (.;·OK.» iiAini (Orui-RwisR Ρ\Ν,\ΥΚ>ΓΛ Pi Ι K I ' U ) ΛΝΟ SlsNK Ν ,,v for ihc children before permitting thc decree to be made abso' u t e ' ^ n l ' i e m a t c r ' a ' placed before me by the petitioner I am not satisfied with the arrangements for the children and [ propose now to pronounce a decree nisi and direct that the be dealt with subsequently by having the matter resm a U c r torcd in the list, when the petitioner is ready with the nccessa ' y material. In the meantime I directed (on the 5th Deccmber, 1966) the preparation of a report by a Welfare Ofn C C |- jo h d p the Court delermine this question. When the petitioner is ready the matter is to be restored in thc list and notice given to the wife of the day of hearing and thai the husband claims custody of both children. | II l l ' t ' l t l j The icspondent and co-respondent this petition. to pay the costs of Decree nisi granted. Order, and order as to costs, in terms. 294