Sir Andrew McFarlane, Moylan LJ and Holroyde LJ. Transfer of tenancy under s 53 of the Family Law Act 1996: an appeal by the Husband of the decision of Mostyn J dismissing his appeal of an order for a transfer of tenancy on the basis that the parties’ ‘non-marriage’ status resulted in them being ‘cohabitants’ under paragraph 3 for the purposes of the Act.

As is conventional, the parties are referred to as husband and wife, despite the parties never having contracted a valid marriage.

This matter was a second appeal, being an appeal from Mostyn J’s decision, on appeal from Recorder Allen KC. The question for the court was whether the term ‘cohabitants’ in paragraph 3 of the FLA 1996 included the parties to a void marriage, or whether they would only come within the scope of paragraph 2.

Background

The parties married in the Iranian Embassy in Ukraine in 1997. The husband was of Iranian nationality, and the wife of Ukrainian nationality. The marriage was never registered with the Ukrainian State authorities, despite three attempts by the wife to do so. The parties moved to the UK in 2001, and in 2010 were granted a Housing Association tenancy in their joint names.

The parties separated in December 2019. The wife applied for a divorce in January 2021, but the petition was refused due to the absence of a marriage certificate. The wife withdrew her petition and applied for a transfer of the tenancy into her sole name pursuant to s 53 and Schedule 7 of the FLA 1996.

At the first hearing before Recorder Allen KC, the issue arose as to whether the parties were validly married; the husband contended that they were, and the wife posited that they were not. The judge made a transfer of tenancy order in favour of the wife without determining whether the parties were validly married or not, on the basis that he had the power to order a transfer of tenancy whether they were parties to a valid/void/voidable marriage under paragraph 2 of Schedule 7 to the FLA 1996 or parties to a non-marriage (who were also former cohabitants) under paragraph 3 of Schedule 7.

The difficulty was that the dates on which the court could make an order were different under each paragraph; in the former, the order could only be made on or after a divorce, nullity of marriage or judicial separation order was made, whereas in the latter, it could be upon the parties ceasing to cohabit.

Decision of Mostyn J in the High Court

The husband was granted permission to appeal on the ground the judge was wrong to conclude that he had jurisdiction to make a transfer of tenancy order before having first determined whether the parties had entered into a marriage which should be treated as void under English law, or any marriage at all.

Expert evidence was provided by a Ukrainian lawyer at the hearing before Mostyn J. The expert opined that the marriage would not be considered valid under Ukrainian law, because the ceremony had taken place in the Iranian embassy, and in those circumstances, both parties needed to be of Iranian nationality for it be considered a valid ceremony. Mostyn J concluded that the parties had undergone a ‘non-qualifying ceremony’.

Accordingly, Mostyn J dismissed the appeal. He held that the binding determination of the foreign law extends to the ‘ramifications of invalidity’, i.e. the relief that should apply in the English court is that which would be available to the husband under Ukrainian law (relying on Sottomayor v De Barros (No 1) (1877) 3 PD 1 (CA)). In this case, he found that no remedy would be available at all. He then concluded that the 1997 ceremony was therefore analogous to a domestic non-qualifying ceremony, generating no right to the grant of a nullity order and therefore the power to transfer the tenancy was validly exercised by the Recorder.

The Court of Appeal

In his grounds of appeal, the husband submitted that:

(i) the parties’ marital status needed to be determined because the dates on which the court could make an order were different under paragraphs 2 and 3;

(ii) the judge had been wrong in considering that the relief or remedy available under Ukrainian law ‘presumptively’ determined the relief under English law; and

(iii) the parties’ marriage was void bringing them within the scope of, and only of, paragraph 2. Accordingly, a transfer of tenancy could only be made on the making of a nullity order.

The wife conceded that the parties’ marital status needed to be determined for the purpose of deciding which paragraph applied.

The husband challenged the judge’s conclusion that the determination of the foreign law extended to the ‘ramifications of invalidity’. Counsel for the Husband, Max Lewis, submitted that English family law invariably applies the lex fori; the validity of foreign marriages is an exception and there is no good reason to extend that exception to the decision whether to grant any remedy. Further, it was submitted that the court should ‘lean strongly in favour or opening the door to matrimonial relief in cases where the parties have believed themselves to be married, and have lived their lives on that basis’. Mostyn J’s approach also created practical difficulties: what if there were remedies available under the foreign law which were not available, or did not even exist, under English law?

With regard to (iii), the husband submitted that paragraphs 2 and 3 are mutually exclusive; a party to a void marriage cannot be a ‘cohabitant’ within paragraph 3, but only paragraph 2.

The wife submitted that the only issue which needed to be determined was whether the parties were married. It was clear from the judgment that the parties did not enter into a legally valid marriage; it had been unnecessary for the judge to decide whether the marriage was void or a non-qualifying ceremony as, in either case, the court had power to make a transfer of tenancy order pursuant to the provisions of paragraph 3. In both circumstances, the parties were cohabitants for the purposes of that paragraph, defined in s 62(1) of the Act as ‘two persons who are neither married to each other nor civil partners but are living together as if they were a married couple or civil partners’.

Determination

Moylan LJ addressed Mostyn J’s conclusion regarding the ‘ramifications of invalidity’.

The judge agreed with the husband that the law of the place where the marriage was celebrated determined the validity of the marriage, but there was no suggestion in the textbooks or case authorities that this principle extended any further than that issue. The authorities Mostyn J referred to did not support his position. Burns v Burns [2008] 1 FLR 813 and Asaad v Kurter [2014] 2 FLR 833 were right, in that they confirmed, once the foreign law determined whether it was a valid marriage, it was for the lex fori to decide the implications and what remedies were available.

Therefore, Moylan LJ held that there could be no justification for depriving a party of a remedy available under English law simply because there would be no remedy available under the foreign law; the remedies available were solely a matter of English law.

Moylan LJ determined that a void marriage would have no effect on the status of the parties; given no decree of nullity was required (De Reneville v De Reneville [1948] p 111), the parties would have the same status as unmarried people living together and therefore would be, in general terms, cohabitants (once the statutory evidential hurdle that the parties have been ‘living together as if they were a married couple or civil partners’ was proven). Further, he held that there was no justification for an interpretation that parties to a void marriage must be excluded from paragraph 3 because they are included within paragraph 2.

In this case, whether the marriage was a void marriage or ‘analogous to a domestic non-qualifying ceremony’ was an unnecessary question to engage with, because once it was clear that the marriage was void, the court had jurisdiction to make an order under paragraph 3.

The husband’s appeal was dismissed, as, in this case, the marriage was void, and therefore the court had jurisdiction to make a transfer of tenancy order under paragraph 3 of Schedule 7. The Recorder had jurisdiction to make the order as he had.

Commentary

Mostyn J gave a bold judgment in finding that the relief or remedy available under the foreign law presumptively determined the relief or remedy available under English law. After Mostyn J’s judgment, Rebecca Bailey-Harris commented ([2023] Fam Law 506):

‘The valuable analysis of the law of marriage invalidity notwithstanding, from a practical perspective the time and effort obviously devoted to the appeal and judgment leaves one with a sense of disquiet. The Recorder’s judgment was upheld. He clearly had the power under Sch 7 to the 1996 Act to order transfer of a tenancy between former cohabitants as well as between former spouses where a nullity decree is obtained. Was it therefore really necessary to determine the issue of marriage validity and if, invalid, the characterisation of that invalidity and hence whether it may attract a decree nisi/conditional decree of nullity?’

Moylan LJ too commented, in the opening paragraphs of the judgment, that it was regrettable that the issue had remained unresolved for over two years since the wife had made her application.

It is clear that any further changes to happen in the area of the validity of marriages generally, and the area of non-marriages more specifically, will need to happen through statute. Moylan LJ was clear that the remedies which might be available under the foreign law were not relevant to the issue of formal validity. However, when considering whether the law should be extended as Mostyn J had proposed, it should be considered whether it would achieve more or less clarity and certainty. Mostyn J’s approach, even in the broadness of the term ‘ramifications’, would not have achieved more certainty and would have increased the cost of determining such applications significantly.