McFarlane P, Moylan and Holroyde LJJ. Are the parties to a void marriage able to apply for a transfer of tenancy as cohabitants, and does the lex loci celebrationis determine the ramifications of invalidity?

Appeal from the decision of Mostyn J – summarised here – which was itself an appeal from the decision of Recorder Allen KC.

The parties had married in the Iranian embassy in Ukraine. This did not give rise to a valid marriage recognised in Ukrainian law, as only H was Iranian. After moving to the UK, W applied for the parties’ tenancy in a housing association property to be transferred to her under s 53 Family Law Act 1996, which includes those whose marriage has been subject to a nullity order. However, W had not procured a nullity order at the time, and Sch 7 para 2 of the Act requires that transfer order be made only after conditional order and not take effect until the order was final. The effect of this was to place cohabitants in a better position to those in a void or valid marriage, as cohabitants could obtain an order under para 3 as soon as cohabitation ceased.

Recorder Allen KC had made the transfer order on the basis that he had jurisdiction whether the marriage was valid or void. This decision was upheld by Mostyn J who held that the parties were cohabitants. In the course of his judgment, Mostyn J also considered that the law of lex loci celebrationis not only determined the validity of the marriage but also the ramifications of validity if that law distinguished between different categories of invalid marriage. The husband appealed.

Held:

The court had needed to determine whether the parties were validly married to decide whether or not the power to make a transfer order arose under paragraph 2 or 3. This was because under para 2, the order could only be made on or after a divorce, nullity, or judicial separation order and take effect when that order was made final. However, the parties to a void marriage can fall within the definition of cohabitants in s 62(1), in that they are ‘two persons who are neither married to each other nor civil partners of each other’, if they were ‘living together as if they were a married couple or civil partners’. Paragraphs 2 and 3 are not mutually exclusive.

It was not necessary for Mostyn J to deal with the issue of whether the marriage in this case was a void marriage or ‘analogous to a domestic non-qualifying ceremony’. The formal validity, and only the formal validity, of a marriage is determined by the law of the place in which the marriage was celebrated. The remedies available there are irrelevant.