clr/1977/1977_1_1.pdf

(1)that though this marriage which was performed 25 in accordance with the formalities of the lex loci celebrationis may be considered a perfectly valid marriage in England, the Greek-Orthodox Church recognizes as valid only marriages celebrated in accordance with the rites and ceremonies of that church .i.e. ecclesiastical marriages and that a civil marriage 30 celebrated between persons who are members of thatchurch, anywhere, is void.

(2)That the provisions of Article 111 relate to the substan­ tive law of marriage applicable to matrimonialcauses inwhich a citizen of the Republic and amember of the church referred to therein is a party and also to provisions relating tocompe­ tence of the Courtwhich is to try such a matrimonial cause; that the religious ceremony is not, therefore, considered as a mere form of marriage but as a condition of theessential va- 2 35 lidity of the marriage without which the marriage is considered as non-existent; and that, accordingly the marriage performed between the parties to this petition on the 3rd November, 1972 is not a valid marriage and is void ab initio. 5 Order accordingly. Cases referred to: Formosa v. Formosa [1962] 3 All E.R. 419. Matrimonial Petition. 10 Petitionby thehusband for adeclaration thathismar­ riage with therespondentis nulland void. K. Michaelides, for thepetitioner. Ch,loannides, for therespondent. Cur. adv.vult. The following judgment was delivered by:- 15 L. LOIZOU,J.: By this petition the husband petitioner prays for a declaration that the civil marriage performed between theparties inEngland is null and voidand of no effect as being contrary to law and the constitution. The facts of the case are briefly as follows: Both thepetitioner and therespondent are Greek Cyp­ riots,members of the Greek-OrthodoxChurchandperma­ nent residents of Cyprus. On the 3rd November, 1972, they went through a ceremony of marriage at Waltham Forest Register Office intheLondonBorough of Waltham >5 Forest. At the relevant time the respondent was and still is an air-stewardess with Cyprus Airways and only used to stay in Londonevery now and then at a hotelwhen her duties as an air-stewardess so required. Thepetitioner was then a student in London but he later abandoned his stu­ iO dies and went to Athens in order to continue there. The parents of the parties also belong to the Greek-Orthodox Church.They are GreekCypriots andpermanent residents of Cyprus. >-0 On the 15th July, 1973, the respondentgave birth to a 15 child. Itis alleged in thepetition that after the celebration of the civil marriage the petitioner has never co-habited with therespondentand also thatheis notthefather ofthe 3 1977 Jan. 21 EPAMINONDAS NICOLAOU METAXA v. MARGARITA MICHAEL ΜΓΤΑ 1977 Jan. 21 EPAMINONDAS NICOLAOU METAXA v. MARGARITA MICHAEL ΜΓΤΑ child born to her. It is further alleged that the marriage celebrated between the parties is not a valid marriage in that it was not celebrated in accordance with therites of the Greek-Orthodox Church and that all civil marriages celebrated anywhere between citizens of the Republic belonging to the Greek-Orthodox Church after the date of the coming into operation of the Constitution are void marriages. 5 By her reply therespondentalleges thatshe and the pe­ titioner met in Cyprus in or about June, 1972, and they 10 had sexual relations first in Cyprus and later in London; in or about thebeginning of October, 1972, the petitioner promised to marry her and that they believed the civil marriage solemnized on the 3rd November, 1972 to be a valid marriage; that after the celebration of the marriage 15 they lived together andthey appearedinpublicashusband and wife, they continuedto have sexual relations andthat the respondent did not have such relations with any other man; that on the 15th July, 1973, she gave birth to a fe­ male child at Bewstod MemorialHospitalandthebirth of 20 the child was registered at StokeNewingtoninthe London Borough of Hackney and that in the certificate of birth the name of the petitioner appears as the father of the child; that the petitioner is the father of the child and he has expressly and by conduct recognized the child as his 25 own. In thecourse of thehearing of thepetitionthe petition­ er gaveevidence onoathand,interalia, stated thathe was a student in London between September, 1971 and Sep­ tember, 1973, when he left and went tocontinuehis stu- 30 dies in Athens. Hemet the respondentin Nicosia in July, 1972, when he was herefor his vacations but that up to the time of the celebration of the marriage he had no sexual relations with her because, although he had not proposed to her in so many words, he understood from 35 her demeanour that she would not consent to this. The first time he had sexual relations with her, he said, was on the first night of their marriage and thathe then rea­ lised thattherespondentwas nota virgin as shepretended to be and as a resultthey quarrelled andseparated and she 40 returned to Cyprus; and thereafter they never had sexual relations again. Their intention,he said, was not to have any childrenandfor thisreasonshe started taking pillsten 4 days before the marriage.In cross-examination he said it was the respondent who had proposed marriage to him but hedid admit,nevertheless, thathewrote to her father andasked for herhandin marriage. Healso admittedthat 5 hedid meether inLondon after thealleged separationbut such meetings were for the purpose of negotiating the di­ vorce. He further admitted writing to her and addressing her as his wife but thathe did this at her request and for the sakeof her parents who, she told him,were sickpeo10 pie. In such letters he mentionedthe child but again he didso atherrequest. I do not consider it necessary for the purposes of this petition tocommenton thepetitioner'sevidencebutImust say thatit seems to methat the contents of the letter 15 exhibit2 addressed by him to one Michalakis, a relation of the respondent, to say the least, belies his allegations about their relations and thepaternity of the child born to the respondent. Having briefly set outthefacts I now revert to theissue 20 of the validity of themarriage. In considering this matter I have derived considerable assistance from a study on theright to marry and found afamily especially under the law of Cyprus by the Attorney-General of the Republic Mr. Criton G.Tornaritis, Q.C.,to which I have been re25 ferred by counselfor thepetitioner. As stated earlier on it is common ground that thepar­ ties were atall timematerial to theseproceedings andstill are domiciled inCyprus, they are members of theGreekOrthodox Church and that no religious ceremony in ac30 cordance with the rites and ceremonies of that church took place but only a civil marriage was solemnized at a Register Office inEngland. The relevant constitutional provision is Article 111.1 of the Constitutionwhich reads as follows: 35 40 "111.1 Subject to the provisions of thisConstitution 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 re5 1977 Jan. 21 EPAMINONDAS NICOLAOU METAXA v. MARGARITA MICHAEL ΜΓΓΑ 1977 Jan. 21 EPAMINONDAS NICOLAOU METAXA v. MARGARITA MICHAEL ΜΓΓΑ ligious group towhich theprovisions 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, 5 as the case may be, and shall be cognizable by a tribunal of such Churchandno Communal Chamber shall act inconsistently with the provisions of such Law". The religious groups to which reference is made in this 10 Article are those religious groups whose members being neither members of theGreek Communitynor of theTur­ kish Community have opted to belong to the Greek Com­ munity. And although under section 29

(2)(

1. b)of the Courts of 15 Justice Law, 1960, thelaw applicable in relation tomatri­ monial causes within the jurisdiction of this Courtis that which was applied by theSupremeCourtof Cyprus onthe day preceding IndependenceDay, that is to say, the law applied by the High Court of Justice in England in exer- 20 cise of its Matrimonial Jurisdiction (see section 20(
2. b)of the Courts of Justice Law (Cap. 8) now repealed) such provision is in view of Article 179 now subject to Article 111 of the Constitutionwhich is the supreme law of the Republic and no law shall be inconsistent with any of the 25 provisions of the Constitution. There is uncontradicted evidence in the present case given by an advocate who is an expert on the law of the Greek-Orthodox Church that that church recognizes as valid only marriages celebrated in accordance with the 30 rites and ceremonies of thatchurch i.e. ecclesiastical mar­ riages and that a civil marriage celebrated between per­ sons who are members of that church, anywhere, is void. It is clear from the above that theprovisions of Article 111 relate to the substantive law of marriage applicable 35 to matrimonial cases in which a citizen of the Republic and a member of thechurch referred to therein is a party and also to provisions relating to the competence of the Courtwhich is totrysuch amatrimonialcase. The religious ceremony is not,therefore, considered as 40 6 1977 Jan. 21 a mereform of marriage but as a conditionof the essen­ tial validity of the marriage without which the marriage is consideredasnon-existent. The right to marry is safeguarded by Article 22.1 theConstitution whichis intheseterms: "Any person reaching nubileageis free tomarryand found afamily according to thelaw relating tomar­ riage,applicable tosuchperson undertheprovisions of thisConstitution". 10 Itwill thusbe seenthat thisrightis somewhatrestricted in thesense that it has to be exercised in accordance with thelaw relating to marriage applicable tosuch person un­ dertheprovisions of theConstitution. I am well aware that this marriagewhich was perform15 ed in accordancewith the formalities of the lex loci cele­ brationis may be considered a perfectly valid marriage in England; and that the Courts in England have expressed their views regarding thevalidity of marriages of thiskind in no uncertain terms in cases like Formosav.Formosa 20 [1962] 3 All E.R. 419 where they held that the require­ ments of thelaw of thechurchof Maltafor a religious ce­ remony offended intolerably against theconceptof justice prevailing in theEnglish Courts. This maywellbe so.But whilst one may have the greatest respect for this view of 25 English Courts, nevertheless, the Courts in Cyprus are bound to administer the law of the Republic as provided in itsConstitution. In this respect useful reference may be made to a pas­ sage from Cheshire's Private InternationalLaw, 9th ed., 30 atp.318: 35 "The principle that a marriage which is in accord­ ance with the formalities of the lex loci celebrationis is to be regarded as formally valid everywhere even though it would have been void if solemnized inthat mannerin thecountrywhere oneorboth of thepar­ ties are domiciled is generally but not universally ac­ cepted. Thus in those countrieswhere statusdepends upon religious law, as it does in Cyprus andGreece for persons of the Orthodox faith, in Malta for Ro- 7 of EPAMINONDAS NICOLAOU METAXA v. MARGARITA MICHAEL ΜΓΓΑ 1977 Ian. 21 EPAMINONDAS NICOLAOU METAXA v. MARGARITA MICHAEL ΜΓΓΑ man Catholics, and in Cyprus for Moslems, a mar­ riage contracted in disregard of the religious forma­ lities of the domicil, no matter where solemnized, is not recognized as valid. For instance, a civil mar­ riage contracted in London by a Roman CathoUc domiciled in Malta is notrecognized by Maltese law. Nevertheless, the marriage remains valid in the eyes of English law". In the light of the foregoing I feel bound to hold that, on the facts of this case, themarriage performed between the parties to this petition on the 3rd November, 1972, is not avalid marriage andis void abinitio. 10 In all the circumstances of this case I am notprepared tomakeany order astocosts. Order accordingly. 15 8