(1979) 1979 December 14 [A. Loizou, J.] S1MONE LUCIENNE ECONOMIDES, Applicant, v, EFSTRATIOS, ALIAS TAKIS, ECONOMIDES. •*ondent, (Civil Apuication No. 29/73). Matrimonial Causes—Jurisdiction—Maintenan

Article 111

of the Constitution or by a Court 10 established by a Communal Law

Article 160

of the Constitution—Supreme Court vested with exclusive original jurisdiction to deal with application for maintenance—Section 19(b) of the Courts of Justice Law, 1960 (Law 14/60)—Section 40 of the same Law cannot be considered as taking away the jurisdiction 15 of the Supreme Courtgiven toit by section 19(b)—No inconsistency or repugnancy between the two sections—Mantovani v. Mantovani, 1962 C.L.R. 336 applied—Michael v. Michael

t ' c Marriage Act, 1949; and about one month after this marriag they, also, went through an ecclesiastical marriage ceremony, in accordance with the rites of the Greek-Orthodox 25 Church at Alexandria Egypt. The husband, though not express! stated to be so, has been considered for all intents and puiposc^ 642 1 C.L.R. 5 10 15 20 25 Economides τ. Economides as a member of the Greek-Orthodox Church and thewife, who was of Belgian origin, as a member of the Roman Catholic Church. There was nothing in the record as to the nationality of the parties but in the marriage certificate it was stated that they were both residents of the United Kingdom at the time of the marriage. It appeared that some time after the marriage the parties came and established themselves in Famagusta where the husband worked as an architect. As the husband left the conjugal home and was only partly providing for the maintenance of the wife and their daughter, on November 21, 1973 the wife applied for maintenance

section 23

Article 111

of the Constitution, cognizable by a tribunal of a Church or by a Court established by a Communal Law

5 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 10 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

the Law repealed by this Law". On the question whether the Court hadjurisdiction to entertain an application for a maintenance order: 15 Held,

the laws jf that country; and that had their marriage taken place 35 in Cypru .at the time they would have been legally entitled to be married at the Commissioner's Office

the provisions of the Marriage Law, Cap. 279, as same would not be falling \ ithii 644 1 C.L.R. Economidesτ. Economides the exceptions provided by sections 34 and 36 of that Law, and as such this Court would havejurisdiction to entertain any cause arising therefrom (Michaelv. Michael

Article 111of the Constitutioncognizable by a

Tribunal of aChurchor by aCourt established by aCommunalLaw

Article 160of the

Constitution,this Court, had

section 19(b)of Law 14/60exclusive original jurisdiction to deal with the matter at the time which before independence would have been heard and determined by it.

The Marriage Act of 1949 at St. Pancras Register Office, London, U.K. There were four children from this marriage, the last one being Franscoise who was born on the 22nd October, 1957, and who since the making of the maintenance order has come of age. It appears that the parties came to Cyprus and established themselves in Famagusta where the husband worked as an architect. On the 2nd August, 1973, he left the conjugal home and he was only partly providing for the maintenance of the applicant and their said daughter, hence the original application for a maintenance order. Nothing appears in the record as to the nationality of the parties, but in the Marriage Certificate 646 25 30 35 1 CX.R. Economidesv. Economides A.Loizon J. produced (exhibit 1), it is stated that both spouses were at the time of the marriage residents of the United Kingdom. In the course of the hearing of this application it was admitted that the parties went also through an ecclesiastical marriage 5 ceremony in accordance with the rites of the Greek Orthodox Church at Alexandria, Egypt, about a month after their civil marriage. The husband, though not expressly stated to be so, has been considered for all intents and purposes as a member of the Greek Orthodox Church and the wife, of Belgian origin, 10 as belonging to the Roman Catholic Church. Although the question of lack of jurisdiction was raised in the opposition filed to the original application, same was not pursued and eventually a settlement was reached and a consent order was made for the payment of C£150.-per month for the 15 maintenance of the wife and their daughter Franscoise,:b~ut as stated in the said order, "exclusive, as regards the latter,1of the expenses of her education, provision for wearing apparel and footwear and other expenses, and pocket money". The first payment was payable on the 5th March, 1974. 20 25 That application was based on section 23

such order, application may be made ex parte to a Judge for transfer of the order to a District Court. If the application is granted, then, upon lodgment in the 5 registry of the District Courtnamed of a sealed copy of the order transferred together with a sealed copy of the order directing transfer, execution shall issue from such registry in thesame manneras execution of ajudgment of a District Court as if leave for the issue of such execution had been 10 granted by the District Court." It has been the case for the applicant—husband that the Supreme Court had no jurisdiction to make this maintenance order in view of the provisions of section 40 of the Courts of Justice Law, 1960 (Law No. 14 of 1960—to be referred to 15 hereinafter as the Law) as one of theparties is a member of the Greek-Orthodox Church and the marriage was celebrated in accordance with the rites of that Church. It was argued that the proper Court to have made a mainte­ nance order, in the circumstances was

section 40 of the 20 Law andtheprovisions of Articles2and 111of the Constitution, the District Court. Furthermore, it was the case for the applicant/husband that no concurrentjurisdiction could be given by these two sections in this respect to both the Supreme Court and the District 25 Courts. Thejurisdiction of this Court in Matrimonial Causes is given by section 19 of the Law, which in so far as relevant, reads: " 19. The Supreme Court shall, in addition to the powers and jurisdiction conferred upon it by the Constitution, 30 have exclusive original jurisdiction— (a) (b) save where a matrimonial cause is,

Article 111

of the Constitution, cognizable by a tribunal of a Church or by a Court established by a Communal Law

Article 160of the Constitution, in relation 35 648 I' 1 C.L.R.

5 10 15 20 25 30 35 Economides v. Economides A. Loizoa J. 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

the Law repealed by this Law". Section 40 sub-sections

the provisions of the Marriage Law, Cap. 279. It was held that this Court had jurisdiction to entertain a petition for the dissolution of the marriage as the case did not fall within the exceptions of sections 34 and 36 of the Marriage Law in 20 force at the time of the marriage and that the parties were legally entitled to be married at the Commissioner's Office

the provisions of that Law. Vassiliades J., as he then was, on examining the question of the jurisdiction of this Court to entertain the petition and to 25 grant the remedy sought, had this to say at p. 339:44 The main question for decision, in these circumstances, is whether this Court has jurisdiction to entertain the petition and to grant the remedy sought. The learned counsel on both sides, submitted that these 30 two questions must be both answered in the affirmative. Mr. Joannides on behalf of the petitioner submitted that the parties were within their legal rights in contracting a civil marriage

the provisions of the Marriage Law (Cap. 279); and referred me to section 36 in support of 35 his contention. As neither the Roman Catholic nor the Greek-Orthodox 650 1 C.L.R. 5 10 15 20 Economidesτ. Economides A. LoizouJ. Church recognise such civil marriage, counsel further contended, and as the parties do not belong to the same religious group, article 111 of the Constitution, which is based onthe division of the community inreligious groups

the Constitution, is not applicable in their case. And this is the proper and only Court to deal with the matter, in its Matrimonial jurisdiction, applying the English Law as provided in section 19(b) of the Courts of Justice Law, andsection 20of Law40of 1953 (Cap. 8). Mr. Lefkos Clerides for the respondent, on the other hand, submitted inhis final address that article 111 applies only tocases where both parties belong tothe same religious group,asdefined inparagraph 3ofarticle2oftheConstitu­ tion. Hereferred meto Cosgrovev. Cosgrove(Matr. Pet. 10/60in this Court); and to Tyllirou and Tylliros (Case 128/61 in theConstitutional Court—3, R.S.C.C., 21). He agreed with counsel onthe other side, that this isthe proper Court to entertain the proceeding

section 19(b)of the Courts of Justice Law,applying theEnglish law in the matter. Allthemoreso,counsel added,asno Ecclesiastical Tribunal in this Country, will recognise thecivil marriage subsisting between the parties; or entertain a proceeding therein. 25 I accept the submission made by learned counsel on both sides, that this Court hasjurisdiction tohear and determine the present cause. 30 Not falling within the exceptions in sections 34 and36 of the Marriage Law(Cap. 279) inforce atthe time oftheir marriage, the parties were legally entitled to be married at theCommissioner's Office,

theprovisions of that Law. And having done so, they left the Commissioner's Office, a legally married couple; each acquiring the status of a married person. 35 As farasthe lawwasconcerned,the subsequent religious ceremony in the Roman Catholic Church, did notadd anything to that status; nordidit,inanyway, affect itat all. Same asthe non-performance of a religious ceremony in the Greek-Orthodox Church,.of which the wife is a member, didnot inanywayaffect the legal status acquired 651 \ A. Loizoa J. Economides v. Economides

its present constitution, the Supreme Court of the Colony of Cyprus would undoubtedly have juris- 5 diction to entertain a matrimonial cause, arising in this marriage,

section 20(

1. b)of the Courts ofJusticeLaw (Cap. 8) in force at the time. This being so, the position is now governed by section 19(
2. b)of the present Courts of Justice Law (14 of 1960). 10 And as I said theotherday inDarmanin v.Darmanin (Mat. Pet. 13/61): * Falling, as it does, outside the saving lines of section 19(
3. b), the petition remains within the exclusive jurisdiction 15 of this Court, in the exercise of the powers which before Independence Day, vested in, and wereexercisable by the Supreme Court of Cyprus,

the provisions of sections 20(b)and 33

the provisions of section 19(b) of the Law: 5 10 15 20 **

the provisions of section 19(b) of the Courts of Justice Law, 1960, the High Court has exclusive original jurisdiction to hear matrimonial causes which were before Independence Day heard and determined by the Supreme Court of Cyprus

the Courts of Justice Law, Cap. 8 (now repealed), save where a matrimonial cause is,

Article 111of the constitution, cognizable by a tribunal .

of a Church or by a Court established by Communal Law -

Article 160of the·Constitution.

In view of the provisions of Article 111 of the Constitu­ tion this is not one of those cases which could be tried by a Communal Court established

Article 160of the Constitution.

Furthermore, there is no doubt that the former Supreme Court of Cyprus would have jurisdiction to entertain the present petition prior to Independence Day. Consequently, what we have now to consider is the effect of the provisions of Article 111 of the Constitution on the Statute Law of Cyprus obtaining on Independence Day. Article 111, paragraph 1, of the Constitution reads as : follows: 25 30 35 ' 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 religious group to which the provisions of paragraph 3of 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.' If I may summarise the provisions of this Article, so far as one is permitted to summarise these provisions for the 653 A. Loizou J. Economides τ. Economides

the provisions of Article 111 of the Constitution, and that this Court is the only Court which has exclusivejurisdiction to hear and determine the present case

the provisions of section 19(b) of the Courts of Justice Law, 1960." In the case of Dokidou v. Dokides

theprovisions of the Marriage Law, Cap. 279 and on the following day they went through a religious ceremony of marriage in the Greek Orthodox Church. It was held that it would seem that in that case although the parties went through a civil marriage they 20 electedtohavetheirmarriagegoverned by CanonLaw applicable to the wife, that is the Canon Law of the Greek-Orthodox Church.

Article 22

paragraph 2(a) of the Constitution which applies to mixed marriages and which provides that if the Law 25 relating to marriage applicable to the parties as provided

Article 111is not the same, the parties may.elect to have their marriage governed by the

Law applicable toeitherof themunder such Article. On theevidence adducedit was further held thattheEcclecia- 30 stical Tribunal of the Greek-Orthodox Church of Cyprus was competent to hear that Matrimonial Causebetween the parties and grant a decree of divorce if either spouse could establish one of the grounds of divorce provided by the Charter of the Church. It followed therefore that the Matrimonial Cause 35 between the parties to that case was

Article 111

of the Constitution cognizable by the Eccleciastical Tribunal of the Greek-Orthodox Church and so the jurisdiction of this Court was ousted

the express provisions of section 19(b) of 656 1 C.L.R. Economidesτ. Economides A. Loizou J. the Courts of Justice Law, No. 14 of 1960 and the Court could not hear and determine that petition. This case was followed by Charakis v. Loizou

the provisions of this Constitution. * It will thus be seen that this right is somewhat restricted 10 in the sense that it has to be exercised in accordance with the law relating to marriage applicable to such person

the provisions of the Constitution." These last four cases are therefore distinguishable from the previous ones as in all of them both parties were citizens of the 15 Republic ordinarily resident in Cyprus and members of the Greek-Orthodox Church or of a religious group to which the provisions of paragraph 3 of Article 2 of the Constitution apply. Religious groups in the acmeof this paragraph are those religious groups whose members being neither members of the Greek 20 Community nor of the Turkish community have opted to belong to the Greek Community. Furthermore they were marriages that were celebrated after the coming into operation of the Constitution and were considered on the facts that

Article 111were Matrimonial Causes cognizable by a Tribunal of the 25 Church.

In my view the principle that can be discerned from the rest of the authorities, earlier referred to in this judgment, is that when the parties to the present proceedings were married by the Marriage Officer of St. Pancras, London on the 5th September, 30 1951, long before the coming into operation of theConstitution, they were legally married to each other for all purposes of the Civil Law and the consequences of their marriage could not be dissolved during their life-time except by a valid judgment of divorce. They were, when they left theoffice of the Registrar 35 of St. Pancras, a legally married couple for all intents and purposes, and each of them acquired the status of a married person. In the words of Vassiliades, J., in Mantovanis case 658 1 C.L.R. Economides v. Economides A.Loizou J. (supra)" The fact that they went through a religious ceremony.... later did not in any wayalter their status one wayor theother. " Even if, therefore, the Ecclesiastical Tribunal of one of the two parties, or in this case of the Church to which the applicant5 husband belongs, isempowered to dissolve the religious marriage of the parties, solemnized in Alexandria about a month after their civil marriage, it cannot really dissolve the marriage of the parties celebrated by a marriage officer in England

the laws of that country. Had their marriage taken place in Cyprus 10 at the time they would have been legally entitled to be married at the Commissioner's Office

the provisions of the Marriage Law, Cap. 279, as same would not be falling within the exceptions provided by sections 34 and 36 of that Law, and as such this Court would havejurisdiction to entertain any cause 15 arising therefrom. The submission to a consent order for maintenance by the applicant when duly represented by counsel, and after an objection to the jurisdiction of the Court was raised in the opposition, must be taken as far as the factual aspect of this 20 case is concerned, as an admission that all facts that would have been necessary to bring this case within the ambit of Article 111 of the Constitution were lacking. Therefore, as this was a Matrimonial Cause which was not

Article 111o

f the Constitution cognizable by a Tribunal of a Church or by a Court 25 established bya Communal Law

Article 160o

f the Constitution, this Court, had

section 19(

1. b)of the Law exclusive original jurisdiction to deal with the matter at the time which before independence would have been heard and determined by it. 30 Section 40 of the Law cannot be considered in a way as taking away thejurisdiction of this Court given to it by section 19(
2. b)of the Law. There is no inconsistency or repugnancy between the two assection40appliesonlywherean Ecclesiastical Tribunal of the Greek-Orthodox Church or of a Church of which 35 the provisions of paragraph 1of Article 111 of the Constitution apply, would have power to entertain a cause brought bya wife in respect of her marriage. In the present case on the authority of Mantovani (supra) and the rest of the cases referred to earlier in this judgment and bearing in mind the factual aspect of this 40 case,no suchTribunal would havepowertoentertaina Matrimo659 A. Loizou J. Economides v. Economides