Tousi v Gaydukova – Must Parties to a Void Marriage First Seek a Nullity Order before Obtaining an Order for the Transfer of a Tenancy?

Published: 01/07/2024 07:00

The distinction between void, voidable and non-qualifying ceremonies can be difficult to discern. The case law is voluminous and often turns on very specific factual scenarios. The case of Tousi v Gaydukova [2024] EWCA Civ 203 entered a further level of complexity by relating to a foreign ‘marriage’ in the terms of an application for a transfer of tenancy under the Family Law Act 1996 (FLA). The case became embroiled with fascinating issues relating to private international law, the question of whether the parties’ purported marriage was a void or non-qualifying ceremony, and which jurisdiction should determine the nature of the marriage ceremony and the relief or ‘ramifications’ that flow. However, as the Court of Appeal held, this was an unnecessary distraction to the key issues in this case. On peeling back the layers of complexity, the issues at the heart of this case were two-fold:

(1) Did the court have jurisdiction to make a transfer of tenancy order under s 53 and Sch 7 FLA where the parties had a void marriage?

(2) Does the definition of a ‘cohabitant’ in Sch 7, para 3 FLA include parties to a void marriage?

This article aims to make clear the answers to these questions, the differences between void and non-qualifying ceremonies, and to highlight the precedent created by the Court of Appeal that parties to void marriages need not seek a nullity to pursue a transfer of tenancy.

Readers will no doubt be aware of the distinction between Sch 7, para 2 and Sch 7, para 3 FLA. Paragraph 2 allows an order for a transfer of tenancy to be made on the application of a spouse or civil partner on the making of a divorce, nullity or judicial separation order. Paragraph 3 allows the order to be made when cohabitants cease to cohabit.

The facts

The appellant was an Iranian national and the respondent was a Ukrainian national. They participated in a ceremony of marriage at the Iranian Embassy in Kyiv, Ukraine in December 1997. The parties took no further steps to register the marriage in Ukraine although the respondent stated she had attempted to get the appellant to register the marriage, but to no avail.

Following the ceremony, the parties lived as husband and wife. In 2000/2001 they moved to the United Kingdom and relied on being spouses for the respondent to obtain a visa. For all intents and purposes they believed they were validly married.

In 2010, the parties were granted a joint tenancy of a housing association property. The property had three bedrooms and was shared by the parties and their two children. In 2020, the relationship broke down and the respondent and the younger child left the property and were re-housed in temporary local authority accommodation. The elder child joined the respondent soon after, and they later moved to larger but ultimately inadequate and overcrowded temporary accommodation. The appellant remained living alone in the family home.

The respondent had attempted to seek a decree of divorce on two separate occasions, but had not been able to because she was unable to afford the fees and, subsequently, she was not able to provide a marriage certificate.

The respondent initially made an application for a non-molestation order and an occupation order. Although the occupation order was refused, the trial judge highlighted it remained open for the respondent to seek a transfer of tenancy.

In 2021, the respondent applied for a transfer of tenancy application. There were then no extant proceedings relating to divorce or nullity. Recorder Allen QC determined the application in favour of the respondent and ordered the applicant to leave the property. However, following judgment, the appellant raised the issue of whether the parties were married and queried the court’s jurisdiction to make such an order without a decree of divorce. Recorder Allen QC ultimately determined that it was not necessary for him to decide the issue as if the parties were married, he could make an order under Sch 7, para 2, and if they were former cohabitants, he could make the order under Sch 7, para 3. The appellant appealed.

High Court appeal – Tousi v Gaydukova [2023] EWHC 404 (Fam)

At the first appeal, it was agreed by all parties that the trial judge should have first determined whether the parties were married. This determined the jurisdiction of the court on making an order for a transfer of tenancy and when it is to come into effect. It was considered important whether the marriage is void or a non-qualifying ceremony, as it would determine whether the trial judge had jurisdiction to make the order for the transfer of tenancy.

The first appeal was, as Moylan LJ put it, ‘side tracked by other legal points which … are not relevant to that core issue’ ([3]1). The appeal required an expert in Ukrainian law to provide three reports. Although, in the High Court judgment, Mostyn J provided a masterful analysis of the history of marriage going back to Gratian, the case law relating to nullity of marriage and the relevance of foreign law to the remedy available under English law in respect of an invalid overseas marriage, this was ultimately simply not needed. Thus the first lesson to be learned from this case is perhaps a fundamental but forgotten one: to trudge through complexity and get to the heart of the issues, and not to overcomplicate unnecessarily.

The expert report clearly set out that the formation of the marriage was not valid according to the lex loci celebrationis and would not give rise to either party to seek a remedy in Ukraine ([30]2). This was accepted by both parties. In dismissing the appeal, Mostyn J found that the scope of the foreign law should not merely determine the validity of the ceremony but should extend to the ‘ramifications’ and relief flowing from that invalidity, provided ‘it is not obviously contrary to justice’.3 In applying this test, he determined that the ceremony was ‘analogous to a domestic non-qualifying ceremony granting no right to the grant of a nullity decree’4 and thereby determined that the relief available under the foreign law should determine the relief available under English law as he held it was not obviously contrary to justice. Although it is clear what Mostyn J sought to accomplish with this new test, it was not, as the Court of Appeal went on to hold, in conformity with previous precedents: the test would also beg the question ‘what classifies as “obviously contrary to justice”?’ It would also unduly fetter the powers of the English court if it were obliged to follow the ‘ramifications’ of the foreign law. The Court of Appeal therefore rejected the proposed test of Mostyn J in so far as the ‘ramifications’ under the foreign law on the question of validity were relevant to the English court’s determination of what remedies were available under English law.

By implication, Mostyn J must have decided that Sch 7, para 3 therefore applied ([10]1). As a result, the transfer of tenancy application was made correctly and remained in place.

The difficulty the parties got into here relates to the ramifications of an invalid marriage. Thus lesson two is to avoid being derailed by what may be a usual course for determining relief on divorce or nullity, but which does not apply to a transfer of tenancy.

Court of Appeal – Tousi v Gaydukova [2024] EWCA Civ 203

In the second appeal brought by the appellant, he raised that the parties’ marital status required determination to decide whether the court order could take effect, that the judge had been wrong to find the foreign law should determine the relief of the English law and that the parties’ marriage was void and therefore needed nullity proceedings which brought them into the scope of Sch 7, para 2.6

The respondent put in a Respondent’s Notice and presented a case which was somewhat simpler. She submitted that the only question for the court to determine was whether the parties were or were not married, as if they were not, it was argued they fell into the category of ‘cohabitant’ which is defined in s 62 FLA as ‘two persons who are neither married to each other nor civil partners of each other but are living together as if they were a married couple or civil partners’. In response to this, the appellant argued that Sch 7, paras 2 and 3 were mutually exclusive and that a party to a void marriage could never be a ‘cohabitant’.

Across both judgments, the court had to consider the implications of void marriages and non-qualifying ceremonies. As set out in De Renville v De Renville [1948] P 100 ‘a void marriage is one that will be regarded by every court in any case in which the existence of the marriage is in issue as never having taken place and can be so treated by both parties to it without the necessity of any decree annulling it.’ Thus the court highlighted that a decree of nullity (now a nullity order) is not a formal requirement to end a void marriage. However, a party to a void marriage is entitled to seek a nullity order if they wish and will be obliged to seek a nullity order if they wish to seek financial remedies under the Matrimonial Causes Act 1973.

In comparison, a non-qualifying ceremony is a ceremony that was so deficient, with non-compliance with formal requirements as stipulated in the Marriage Act 1949, that it is no marriage at all and no order is required. As set out in the High Court judgment, it is ‘a union the voidness of which is so extreme it falls outside the Nullity of Marriage Act 1971 (now s 11 of the Matrimonial Causes Act 1973) and will not attract a nullity’.7 An example of this can be seen in Hudson v Leigh [2009] EWCA 1306 (Fam), in which the English court found the ceremony amounted to a non-marriage as the ceremony had not been intended to create a valid marriage under local law and key words were left out.

The third lesson in this case is therefore to remember that non-qualifying ceremony cases remain relatively rare, look to the formation of the marriage, and turn on the specific facts of the case.

The only real distinction between void marriages and non-qualifying ceremonies is the question of relief sought. To that question the Court of Appeal made clear that the authority of Burns v Burns [2007] EWHC 2492 (Fam) remains good law that ‘once the foreign law has determined whether it is or is not a valid marriage, it is for the lex fori to decide its implications and what remedies are available’.8 Only the formal validity of the marriage is determined by the law in the place where it was celebrated. To extend this any further, the court determined, would cause less clarity and certainty.9

On the Court of Appeal findings, the crux of Tousi did not turn on any distinction between void marriages and non-qualifying ceremonies, but simply on whether parties were validly married or not. The case turned on the definition of ‘cohabitants’. As set out by Moylan LJ, there are two parts to satisfying the statutory definition. The first is that the parties must not be married or be civil partners. Referring to De Renville, if a marriage is deemed as having never taken place, it cannot be a marriage. The second question is one of evidence; whether the parties were actually living together as if they were married or civil partners. In this case, that evidential hurdle was clearly met.10

To determine whether these paragraphs were mutually exclusive the court had to consider the statutory interpretation and whether there was any reason why a void marriage would not fall within the definition of cohabitant for both policy reasons and through the usual canons of statutory interpretation.

The changes made to Sch 7 FLA built on the statutory schemes introduced by the Matrimonial Homes Act 1967 and the Matrimonial Homes Act 1983. The original statutes introduced a scheme for the transfer of tenancies between spouses on divorce and subsequently on judicial separation and on making of a decree of nullity. The FLA extended the power to cohabitees pursuant to a 1992 Law Commission report. Moylan LJ noted11 that there was nothing in the report which considered the relationship between the extended power for cohabitants and the existing power for spouses, particularly the position of parties to a marriage. He observed12 that the scheme was intended to be a prompt remedy, particular for former cohabitants.

Applying Lord Hodge’s observations13 about statutory interpretation in R (O) v Secretary of State for the Home Department [2022] UKSC 3, [2023] AC 255, he concluded14 that there was no reason in general law why parties to a void marriage could not fall within the statutory definition of cohabitants and that there was nothing to support the appellant’s submission that interpreting Sch 7, paras 2 and 3 FLA required a party to bring nullity proceedings and therefore excluded them from para 3, although he confirmed that both void and voidable marriages fall into Sch 7, para 2. The court found ‘it makes evident good sense’ for parties to a void marriage, who do not need a nullity order, to be included within the extension to make a transfer of tenancy to cohabitants.15

Thus returning to the overarching theme of focusing solely on the issues which required determination, Moylan LJ was clear that as soon as the High Court found that the marriage was not valid, it did not need to trouble itself further as to whether this was a void or non-qualifying ceremony as the court had the jurisdiction to make an order under para 3.16 Nevertheless, the court felt obliged to conclude, probably obiter, that this was a void marriage.17

What are the broader implications of this judgment?

The judgment of the Court of Appeal sets a very clear precedent: parties to a void marriage, so long as they meet the evidential burden, can come within the definition of cohabitants and thereby within the jurisdiction of Sch 7, para 3 FLA in order to obtain a transfer of tenancy upon the cessation of cohabitation.

This confirms the principle that for a transfer of tenancy application, a nullity order is not required. To individuals, this will make a significant difference procedurally. It reduces the costs that parties must face to apply for a transfer of tenancy by not having to make two applications, one of nullity and one for transfer of tenancy. It reduces the time delay in the court dealing with an application as they need only deal with the transfer of tenancy issue. This in turn provides better access to justice. In this case, the respondent did not seek financial remedies under the Matrimonial Causes Act 1973, but for other parties to a void marriage, the decision leaves the door open to apply for financial remedy proceedings on the making of a nullity order. In the wider circumstances, it could reduce the number of applications for a nullity order, and by implication the number of applications before the court at any one time.

In summary, this case is the first of its kind and confirms that parties to a void marriage may well have a more streamlined process to a transfer of tenancy, provided they meet the evidential burden. Thus to answer the questions in the introduction: the court did have the power to make a transfer of tenancy order, and, given that a void marriage can come within the meaning of ‘cohabitants’, this can be done under Sch 7, para 3 FLA.

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