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(19*4) 1984 January 24 [PIKIS, J.] AKIS S. PAPASAVVAS, Petitioner, v. YIANNOULLA JOHNSTONE, Respondent. (Matrimonial Petition No. 20/83). Matrimonial causes—Jurisdiction—Nullity of marriage—Ante-nupti

Article 2, but extends to all members of the Greek

Orthodox Church provided they are domiciled in Cyprus. Marriage—Validity—Rule ofprivate international law that a marriage conducted in accordance with theformalities of the lex loci celebrationis is regarded asformally valideverywhere—How affected by the provisions of Article 111 of the Constitution. 20 On October 23, 1981,the petitioner, a Greek Cypriot, domiciled in Cyprus, member of the Greek Orthodox Church and a 25 38 1 C.L.R, 5 10 15 Papasavvas v. Johnstone citizen of Cyprus went into a civil marriage with the respondent :it a Register Office in England under the provisions of the Marriage Act, 1949. The respondent was, also, a member of the Greek Orthodox Church, but she was a British national and holder of a British passport. She was born in the U.K. in 1961 and her parents wereCypriote, and members of the Greek Orthodox Church. Her domicile of origin was England. She came to Cyprus in 1980, rented accommodation and took up a job in furtherance of her intention Tosettle in Cyprus. She, also, took out an identify card under the provisions of the Registratior. of Residents Law, Cap. 85that records her as a resident of Cyprus. The collapse of her marriage to the petitioner had no effect upon her residence in this Country or her future plans. Since she settled in Cyprus in 1980, she wasjoined by her mother who has permanently, like herself, made Cyprus her home. Uponapetition by thehusbandfor a declarationof nullity of the marriagebecauseit washeld contrary to the laws and rites of the Greek Orthodox Church of Cyprus, particularly Article 217* of the Holy Greek Orthodox Atttocephalous Church of Cyprus: 20 25 30 35 Held,

(1)that in cases of nullity, where the ante-nuptial domicile of the wife is different from that of the husband, the Courts of the two countries of domicile of the parties may exercise concurrent jurisdiction over the validity of the marriage; and that, therefore, this Court has jurisdiction to adjudicate upon the validity of the marriage and shall proceed to examine the merits of the declaration sought.
(2)That byway ofexception to the rule ofprivate international law, laying down that a marriage conducted in accordance with the formalities of lex loci celebrationis is regarded as formally valid everywhere, the marriage of Greek Cypriots affected by the provisions of Article 111 of the Constitution is invalid, independently of where it is celebrated, unless conducted in accordance with the canons and rites of the Greek Orthodox Church; that the application of Article 111 is not confined to members of the Greek Community stricto senso,

Article 2

, but extends to all members of the Greek Orthodox Church provided they are domiciled in Cyprus; and that Article 217 postulates, as an indispensable prerequisite Tor the validation of a marriage, the holding of an ecclesiastical ceremony in accordance with the rites and canons of the Greek Orthodox Church. 39 Papasattas *.Johnstone (lyxii membeiship of the Greek Orthodox Church under Article Ml need not of necessity coincide wi'h membership of the Greek Community undei Article 2 of the Constitution

(3)That since respondent intended to cease to residepermanen­ tly or indefinitely in England and had ceased actual residence in this Country, and that since she has been residing in Cypius since 1980, with a settled intention to remain here she abandoned her domicile of origin, England, and became a domiciliary of Cyprus as from
  1. that consequently, the parties, being domiciharies cf Cyprus and members of the Greek Orthodox Church, their personal status was governed by the provisions of Article I I I : that in the absence of an ecclesiastical marriage. their status lemained unaltered, that they could not be \alidl) married except in accoidance with the provisions of Anicle 217 of the Charter of the Aulocephalous Church of Cypius. accord­ ingly theii mamage before the Regisiei Office in England is declared as null. Mairtagc dcthired null Cases lefeired to Chnstodotdou v. ChifHodou/ou. 1962 C.L.R.
  2. Ttlltiou i. Ttllitos. 3 R.S.C.C. 21: Paiupano and Otheis t. Happuz and Ofhei\. Ill C.L.R. 69; Mctaxa \. Mita
(1977)I C.LR. I. Koutwkouinius v. Chmtodoulou
(1981)! C.L.R. 58. Mcdiej v. Medic,
(1983)I C.L.R. 944, Hjijovamu v. Hpjoxaniii
(1969)1 C.L.R.
  1. IRC v. Bullock (1976] 3 All E.R. 353 (C.A.). Vdny '. Udny [1869] LR I Sc. & Div. 441, IRC v. Dutchess of Poitland [1982] 1 All E.R. 784; Bushwell v. IRC [1974] 2 All E.R. 520 (C.A.), Tee v. Tee [1973] 3 All E.R. 1105 <C.A.). Λlatrimonial petition. Petition by the husband for a decree of nullity of marriage. A. Zachariou, for the petitioner. K. Kourtis, for the respondent. Cur. adv. vull. 40 I C.L.R. Papasa^vas v. Johnstone PIKIS J. read the following judgment. The petitioner prays for a declaration of nullity of his marriage with the respondent. solemnized at a Register Office in England on 23.10.81 (see exhibit 2) under English law, viz. the provisions of the Marriage 5 Act,
  2. The declaration is sought on the ground that the civil marriage, notwithstanding its validity in the country where it was solemnized, offended the law governing the personal status of the parties, namely the Constitution and the Laws of the Republic of Cyprus. Inevitably, the first question to be SO answered, concerns the jurisdiction of the Court to take cognizance of the proceedings. Reference to the circumstances of the parties and their marriage is necessary, in order to resolve the jurisdictional issue, an inquiry that will also facilitate determination of the substantive issue, that is, the effect of the \5 1981 marriage, if it is decided there is jurisdicaron to heed the petition. From the evidence adduced before the Court, it has been established that the petitioner is a Greek Cypriot, a member of the Greek Orthodox Church of the country, and a citizen of the 20 Republic throughout his life, save for short periods he spent abroad to study engineering. He met the respondent in 1979 during one of her frequent visits to Cyprus, the country of origin and birth of her Greek Orthodox parents, and established a relationship that later blossomed and led totheir 1981marriage. 25 The parents of the respondent emigrated to the U.K. where they settled, a long time ago. In 1980,the respondent came to Cyprus with a view to settling in the country. She was born in the U.K. in 1961 and is a British national, the holder of a British passport. The marriage 30 of her parents broke down, it seems, in her childhood. Apparently, she remained in the care of her mother who remarried a certain Johnstone whose name the respondent assumed but shewasnot adopted and remained inlawthe child of Mr. Kattos. in evidence she told the Court it was far long within the contem35 plation of her mother that the family should settle in Cyprus. An attempt to that end was made in 1974but was shortly afterwards frustrated by the events of 1974that caused the family to move back to the United Kingdom. In 1980, as mentioned, the respondent came to Cyprus, she rented accommodation and 40 took up a job in furtherance of her intention to settle in this 41 Pikis J . Papasauus v. Juhmtone
(1984)country. They got married in the U.K. during a holiday in that country, before the mother of the respondent came to Cyprus to settle here like her daughter. The petitioner wants to have the marriage annulled because it was held contrary to the laws and rites of the Greek Orthodox 5 Church of Cyprus, particularly Article 217 of theCharterof the Holy Greek Orthodox Autocephalous Church of Cyprus. Article 217 postulates, as an indispensable prerequisite for the validation of a marriage, the holding of an ecclesiastical ce­ remony in accordance with the rites and canons of the Greek |
  1. i)Orthodox Church. In her answer the respondent subscribes, in essence, to the view that the marriage is null for violation of the law bearing on their personal status and ought to be declared invalid. * Undoubtedly, the petitioner was domiciled in Cyprus, a fact that confers by itselfjurisdiction upon the Court to examine the validity of the marriage (see, Christodoulou v. Christodoulou. 1962 C.L.R. 68). |S It is a fundamental precept of private international law that in matters of personal status, the Courts of the country of 20 domicile of the parties have a paramountjurisdiction to settle the status of the parties (see, Cheshire's Private International Law, 9th ed., p. 391). In Christodoulou, supra, it was pointed out thereis nothingin Article 1Π or inany otherprovision of the Constitution preventing the Supreme Court from exercising 25 jurisdiction under s.19(
  2. b)of the Courts of Justice Law - 14/60, over the validity of a non ecclesiastical marriage. In that case, as in the present, the marriage was solemnized in the U.K. in circumstances that bear resemblance to those of the parties in the present proceedings. The Court assumed jurisdiction in 30 respect of the validity of a marriage between a domiciliary of Cyprus and a Maronite woman of Cypriot origin, settled in London. It appears that in cases of nullity, where the ante­ nuptial domicile of the wife isdifferent from that of the husband, the Courts of the two countries of domicile of the parties may 35 exercise concurrentjurisdiction over the validity of the marriage. In the light of the aforesaid, 1am of opinion that this Court has jurisdiction to adjudicate upon the validity of the marriage and shall proceed to examine the merits of the declaration 42 I C.L.R. Papasawas >. Johnstone Pikls J. nought. This I shall do in the light of the uncontested and uncontradicted evidence of the parties and the testimony of Mr. D. Papachrysostomou, a Nicosia advocate, accepted asa witness who possesses sufficient expertise to opine on matters 5 ofecclesiastical andcanon lawofthe Greek Orthodox Church, with particular reference totheAutocephalous Church ofCyprus. Itisbeyonddisputethat thepersonal statusofGreek Orthodox Cypriots isgoverned bythe lawsofthe Greek Orthodox Church of Cyprus. This is laid down in Article 111that preserved, it 30 seems, the position prevailing on the subject prior to independence, during the British rule, as well as during the Ottoman occupation ofthecountry (see, the cases of Tillirou v.Tilliros, 3 R.S.C.C. 21; and Parapano And Others v. Happaz And Others, C.L.R. Vol.Ill, 69, respectively). The extraordinari35 ness of the position under Cyprus lawrespecting the personal status ofCypriots, hasbeen recognised bynotable textbookson the subject ofprivate international law(see,inter alia,Cheshire's Private. InternationalLaw, 9thed., p.318) andgiven effect to by Cyprus Courts (see, inter alia, Metaxa v.Mita
(1977)1 C.L.R. 20 1; Koutsokoumnisv.Christodoulou
(1981)1 C.L.R. 58; Medlej v. Medlej, Matrimonial Petition No.22/83, delivered on24.11.83 - notyet reported).* So,by wayof exception to the rule of private international law,layingdown that amarriage conducted in accordance with the formalities of lex loci celebrationis is 25 regarded as formally valid everywhere, the marriage of Greek Cypriots affected by the provisions of Article 111of the Constitution is invalid, independently of where it is celebrated, unless conducted inaccordance with the canons andrites ofthe Greek Orthodox Church. .The reason isbecause anecclcsiasti30 calmarriage under Cyprus law, in thecase of Greek Cypriots, is a prerequisite tothealteration of their status from single to married. The solemnization of marriage is not regarded asa formality butas a substantive consideration, a prerequisite for the change ofstatus ofthe parties. Tothe above expositionof 35 thelaw,one must add that private international law ties personal status to the lawof the country of domicile. Article 111 of theConstitution appliesintermstoall marriages between Greek Orthodox. However, its application is made Now reported in
(1983)1C.L.R. 944. 43 Pikis J. Papasavvas v. Johnstone (19ΆΛ) by virtue of the opening words of Article 111, "subject to the provisions of this Constitution", to the remaining provisions of the Constitution, including those of Article 2 purporting to define who is a member of the Greek community. Josephidss, J., debated the ambit and limitations to the application of 5 Article 111 of the Constitution in Hjijovannt ν .Hjijovanni
(1969)1 C.L.R.
  1. His observations on the subject, though obiter, are nonetheless a valuable aid to the interpretation of Article
  2. In the opinion of the learned Judge, the appli­ cation of Article 111 is restricted to citizens of the Republic. 10 While I agree that the application of Article 111 is subject to the provisions of the Constitution - and that includes the pro­ visions of Article 2 to whatever extent relevant to theapplication of Article t i l - I am of opinion, on a consideration of the wording of Article 111, particularly the expression "... members 15 of the Greek Orthodox Church ...". that its application is not confined to members of the Greek community stricto senso,

Article 2

, but extends to all members of the Greek Orthodox Church, provided they are domiciled in Cyprus. Membership of the Greek Orthodox Church under Article 111. 20 need not of necessity coincide with membership of the Greek community under Article 2 of the Constitution. The division of the citizens of the Republic into communities, under Article 2 of the Constitution, is directly relevant to the composition, functions and jurisdiction of Communal Chambers. The 25 application of Article 111 extends to every member of the Greek Orthodox Church of Cyprus, provided they are domiciled in Cyprus. Any other interpretation would defy the rule of private international law that the laws of the country of domicile define personal status, and offend in this regard the comity of nations. 30 It can be argued that only domiciharies of the Greek Orthodox faith may properly be regarded as members of the Greek Orthodox Church of Cyprus. But I need not probe into this aspect of the case further, provided I find that respondent, a professed member of the Greek Orthodox Church of Cyprus, is 35 a domiciliary of the country. We can fairly infer, from evidence before the Court thai, England was the domicile of origin of the respondent. From what one may gather, at the time of her birth her parents had permanently settled in England and intended to stay there 44 40 I C.l.-R. Papasavvas v. Johnstone Pikis J. indefinitely. Consequently, the relevant question is whether respondent changed her domicile of origin and acquired a new domicile by her own choice. The authorities establish a clear and concise test to determine abandonment of one's domicile 5 and the acquisition of a new one. In IRC v, Bullock [1976] 3 All E.R. 353(CA), thefollowing test wassuggested to determine the question: Whether a person intends to make his home in a newcountry until theend of hisdays, unlessand until something happens to make him change his mind. It waspointed out that 10 domicile is a concept distinct from that of citizenship, although citizenship may be relevant in determining one's domicile. Abandonment of a given domicile requires (

  1. a)An intention to cease to reside permanently or indefinitely in a given country and, 15 (
  2. b)cessation of actual residence in that country. This test was propounded with relation to the abandonment of adomicileofchoicebutappliesbythesamelogictothe abandonment of the domicile of origin. "Residence" in this context, connotes, as suggested by the authorities, physical presence in a 20 country as an inhabitant of that country (see, Udny v. Udny [1869] LR 1Sc. & Div. 441; IRC v.Duchessof Portland[1982] 1All E.R. 784). In general, domicile is only consistent with a settled intention to remain in a country - Bushwellv.IRC [1974] 2 All E.R. 520 (CA). Lastly, it must be stressed that the in25 tention to make a newcountry one's home must be accompanied byphysical presence in that country, taking the form of residence therein (see, Tee v. Tee[1973]3 All E.R. 1105(CA)). Applying these principles to the facts of the case, I conclude that respondent abandoned thedomicile of herorigin, England, and became 30 a domiciliary of Cyprus, as from 1980. All the evidence before me, isconsistent with her proclaimed intention to settle in Cyprus. She took out an identity card under the provisions of the Registration of Residents Law Cap. 85, that records her as a resident of Cyprus. In her 35 passport, there is an entry of the Immigration Authorities, signifying that she is of Cypriot origin, designed to lift entry restrictions. The collapse of her marriage to the petitioner had no effect upon her residence in this country or her future plans. Sinceshesettled in Cyprusin 1980,shewasjoined by her mother 40 who has apparently, like herself, made Cyprus her home. 45 Pikis J. Papasat>as v. Johnstone

(1984)In the light of the totality of theevidence before me, Iconclude that respondent acquired a Cyprus domicile. Consequently, the parties, being domiciharies of Cyprus and members of the Greek Orthodox Church, their personal status was governed by the provisions of Article 111. In the absence of an eccle- 5 siastical marriage, their status remained unaltered. They could not be validly married except in accordance with the provisions of Article 217 of the Charter of the Autocephalous Church of Cyprus. I declare their marriage before the Register Office in England. as null. Order accordingly. 10 Marriage declared null. 46

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