1 CL.R. 1984 April 5 [A Loizou, J ] CLEO-MARIE CHAHINE, Petitioner SEM1R CHAHINE, Respondent (Matrimonial Petition No 13/82) 5 10 Matrimonial Causes—Jusisdictwn—Wife ordinarily resident in Cyprus for a period of three years immediately preceding the commencement of the proceedings—Court vestedwithjurisdiction todeal with apetition for divorceby wife—Section I8(l)(b) of the Matitmonial CausesAct, 1950—Temporary absenceof wifefrom Cyprus —Whether position affected. Matrimonial Causes—Divorce—Cruelty—Legal Cruelty—Threats of actualpersonal violenceandpersistentfalse accusationsof adultery causing injury to petitioner's health—Legal cruelty proved— Decree nisi to the petitioner Constitutional Law—Marriage—Validity—Article 111 of the Constitution—Applies to cases where both parties are members of the Greek Orthodox Church, Cypriot Nationals and members of the Community concerned 15 20 25 The parties to this petition were married on the 5th August, 1978 at a Civil Marriage Register Office in Pans. The petitioner was a member ofthe Greek OrthodoxChurch andthe respondent a Lebanese National member of the Maronite Church. The marriage has ne\er been celebrated in accordance with the rites of either or any church. Thepetitioner was born in England on the 25lh March 1958, during her father's stay there for studies; and since 1959when her parents returned to Cyprus shehas been ordinarily residing at Ayios Dhometios, Nicosia, Cyprus. Upon a petition for divorce by the wife the ground of divorce iclied upon was cruelty which, in essence, consisted ofthreats of 167 Cbahine v. Cbabine
(1984)actual personal violence and false accusations of adultery with suchpersistencethat causedherconsiderablementalanguishand her health was injuriously affected; and on account of which conduct and threats against her life in the event of her leaving him he forced her to abandon the flat they were residing. 5 Held, (I) on the issue of jurisdiction: That as the petitioner had been ordinarily resident here for a period ofthreeyearsimmediately preceding the commencement of these proceedings this Court hasjurisdiction to entertain the petition (see section 18(l)(b) of the Matrimonial Causes ACT, 10 1950 and Lewis v. Lewis[1956] 1All E.R. 375). Held,further that though she had been temporarily absent from Cyprus her return here, which had previously been her homewasinthecircumstances a resumption by her of ordinary residence in Cyprus. 15 Held, (II) on the merits of the petition: That onthe facts ofthiscasewhichestablish a persistence in the false accusations, which obviously the respondentdidnotbelieve them to betrue, and the consequential injury to the petitioner's health and the reasonable apprehension of it,the petitioner has 20 proved acaseof legal cruelty and intheexerciseofits discretion this Court will pronounce a decree nisi in her favour. Held, further, thatthereisnomeritintheclaimthatthemarriage was not valid in view of the provisions of Article111of the Constitution because the application of the provisions of this 25 Articleisconfinedtocaseswherebothpartiesaremembersofthe Greek Orthodox Church, Cypriot national and members of the Community concerned. Decree nisi granted. Cases referred to: 30 Lewis v. Lewis [1956] 1 All E.R. 375; Metaxas v. Mitas <1977) 1 C.L.R. 1; Neophytou v. Neophytou
(1979)1 C.L.R. 685; Platritis v. Platritis
(1980)1 C.L.R. 324; Tooley v. Tooley
(1984)I C.L.R. 279; 35 Papasawas v. Johnstone
(1984)1 C.L.R. 38; Hjijovanni v. Hjijovanni
(1969)1 C.L.R. 207. 168 I C.L.R. Chahine v. Chahinc Matrimonial Petition. Petition by the wife for the nullity of marriage. A. Dikigoropoulos, for the petitioner. Respondent absent. 5 Cur. adv. vult. A. Loi?ou J. read the following judgment. By the present petition the petitioner wife seeks "a decree
(1)that the marriage celebrated between her and the respondent may be declared null and void; (b) further or in the alternative that the said 10 marriage may be dissolved;
(3)that the petitioner may have such further and other relief as may be just". The respondent/husband was duly served, entered an appearance and was represented by counsel. He objected to thejurisdiction of the Court, but in spite of the successive adjournments 15 for the purpose of facilitating his attendance here, once his presence was considered by his counsel essential for the determination of certain factual aspects of the case, he failed to respond to his advocate's repeated communications made, after several adjournments were granted by this Court so that 20 the opportunity would be given to him to be duly informed to attend the hearing if he so wished. On the 30th September, 1983 his counsel made the following statement: 25 30 35 "Karides: My client, in spite of requests that I made inwriting with copy to his French lawyer to give me further instructions and supply me with the necessary information and whether he would be coming to Cyprus to be present at the heaiing of the case or not, he has failed to do so so far and to respond to them. I request a last adjournment so that I will inform him that my intention is to withdraw from the case and stop acting on his behalf and also inform him of the date of hearing that Your Honour will fix, so that if he wishes he can attend himself on that date or make any other arrangements that he deems necessary in his interest". On the 6th December, his counsel withdrew from the case by leave of the Court as he had written to him informing him 169 Λ. Loizou J. Chahine v. Chahine
(1984)of thedate of hearing as wellas his intentionto withdraw from the case in view of his failure to give him the necessary instructions or reply to his letters. He had in fact sent him a double register letter and receipt of same was acknowledged by the respondent but without communicating with him. The 5 position being so and after all those adjournments of the case and being myself certain thattherespondentwas duly informed andhaving witnessed hisdisinterestnessinthematterIproceeded to hear thewhole case andconsider also theissueofjurisdiction raised as part of it,in order toavoid multiplicity of proceedings 10 and rulings. On the uncontested evidence of the petitioner and bearing in mind the authority of Lewis v. Lewis[1956] 1All E.R. 375, in which the expression "ordinarily resident" to be found in the MatrimonialCauses Act 1950 section I8(l)(b)wasjudicially 15 consideted, 1 find that I have jurisdiction in the mattci as the petitioner had been ordinarily resident here for a period of three years immediately preceding the commencement of the proceedings. She had been temporarily absent from Cyprus and her return here, which had previously been her home was 20 in the circumstances a resumption by her of ordinary residence in Cyprus. Having come to the conclusion that 1have jurisdiction in the matter I turn now to the facts of the case. The petitioner was bom in England on the25th March 1958, 25 during her father's stay therefor studi&i. Since 1959 whenher parents returned to Cyprus she has been ordinarily residing at Ayios Dhometios, Nicosia, Cyprus. She is a member of the Greek Orthodox Church, whilst the respondent is a Lebanese National, member of the Maronite Church. The parties were 30 married on the 5th August 1978 at a Civil Marriage Register Office in the 19th District of the Patis Municipality in France where both parties were university students at the time. Their marriage has never been celebrated in accordancewith the rites of either or any Church. 35 Te ground of divorce relied upon is cruelty. In essence it consisted of threats of actual personal violence and false accusations of adultery with such persistence that caused her considerable mental anguish and the petitioner's health was 170 1 C.L.R. Chahine v. Chahine A. Loizou J. injuriously affected and on account ofwhich conduct and threats against the petitioner's life in the event of her leaving him he forced her to abandon the flat they were residing. As stated in Rayden on Divorce 8th edition p, 134 paragraph 5 91, by reference to decided cases: "Threats: vulgar abuse: false accusations.- Threats of actual personal violence sometimes constitute cruelty (the Court doesnot wait to act until such threatsare carried into effect); but not mere vulgar, or even obscene, abuse, or false accusations of adultery, incestuous adultery, or of unnatural practices, unless the persistence in such false charges gives rise to injury to health, or reasonable apprehension of it". 10 On the facts of the case which establish a persistence in the 15 false accusations and which obviously the respondent did not believe them to be true and the consequential injury to the petitioner's health and to say the least, the reasonable apprehension of it, I find that thepetitioner hasproved a case of legal cruelty and in theexercise of my discretion Ipronounce a decree 20 nisi in her favour. I have not dealt in the first place with the claim that the marriage between the parties wasnot valid in view of the provisions of Article 111 of the Constitution, because there is no merit in it. There has been established by numerous decided 25 cases that the application of the provisions of Article 111.I of the Constitution is confined to casts where both parties are members of the Greek Orthodox Church, Cypriot nationals and members of the Community concerned. (See, inter alia, Metaxas v. Mitas
(1977)1 C.L.R. p. 1, followed in Neophytou 30 v. Neophytou
(1979)1 C.L.R. p. 685; in Platritis v. Platritis
(1980)1 C.L.R. 324, and more recently see Tooley v. Tooley, not reported, delivered on the 24th March, 1984*, following Papasavva v. Jonestone, and referring also to Hjijovanni v. Hjijovanni
(1969)1 C.L.R. 207). 35 in theresult a decreenisiisgranted infavour of the petitioner. In thecircumstances,however, therewill beno order as to costs. Decree nisi granted. No order as to costs. • Now reported in
(1984)I C.L.R. 279. 171