Introduction

Tousi v Gaydukova ([2024] EWCA Civ 203) is a pivotal decision by the England and Wales Court of Appeal (Civil Division) that addresses the interpretation of the Family Law Act 1996 (FLA 1996) concerning the transfer of tenancy orders between cohabitants and parties to a void marriage. The case centers around whether parties to a void marriage fall under the definition of "cohabitants" within Schedule 7 of the FLA 1996, thereby determining the court’s jurisdiction to make a transfer of tenancy order without necessitating a nullity decree.

Summary of the Judgment

The Court of Appeal upheld the decision of the lower courts, affirming that the parties, despite their marriage being void under English law, qualified as "cohabitants" under paragraph 3 of Schedule 7 of the FLA 1996. This classification allowed the Recorder to lawfully transfer the tenancy of the family home to the wife without requiring a nullity order to be finalized. The appellant, the husband, argued that a void marriage should exclude the applicability of paragraph 3 and necessitate the use of paragraph 2, which pertains to spouses. However, the Court of Appeal disagreed, emphasizing that void marriages are treated similarly to non-marital cohabitation under English law for the purposes of tenancy transfers.

Analysis

Precedents Cited

The judgment extensively referenced several key precedents and legal doctrines:

• De Reneville v De Reneville [1948] P 100: Clarified that a void marriage is treated as if it never existed, allowing parties to consider themselves unmarried without requiring a nullity decree.
• Kassim v Kassim [1962] P 224: Reiterated that a void marriage is void ab initio and does not constitute a legal marriage.
• Sottomayor v De Barros (No.1) (1877) 3 PD 1 (CA): Established that the validity of a marriage ceremony is governed solely by the law of the place where it was solemnized.
• Berthiaume v Dastous [1930] AC 79: Affirmed that if a marriage is not recognized in the place it was celebrated, it is not recognized anywhere.
• Burns v Burns [2008] 1 FLR 813: Emphasized that the lex fori (English law) determines the implications and remedies available once the validity of a marriage is established.
• Asaad v Kurter [2014] 2 FLR 833: Supported the principle that English courts determine available remedies independent of foreign law remedies.

Legal Reasoning

Lord Justice Moylan’s judgment focused on statutory interpretation of Schedule 7 of the FLA 1996. The crux was determining whether the parties were "spouses" or "cohabitants" for the purpose of transferring tenancy.

• Paragraph 2 of Schedule 7: Applies to spouses or civil partners and requires a divorce, nullity, or judicial separation order to transfer tenancy.
• Paragraph 3 of Schedule 7: Applies to cohabitants and allows for tenancy transfer upon cessation of cohabitation.

The appellant contended that since the marriage was void, paragraph 2 should apply, thereby necessitating a nullity order before transferring tenancy. However, the court held that void marriages are treated as non-marital cohabitation under English law. Consequently, paragraph 3 was applicable, allowing the transfer without a nullity decree.

The court also rejected the lower judge’s reasoning that the "ramifications of invalidity" under Ukrainian law should influence the availability of remedies under English law. It clarified that English law independently determines remedies, irrespective of foreign law stipulations.

Impact

This judgment establishes a significant precedent in family law by clarifying that parties to a void marriage are considered cohabitants under Schedule 7 of the FLA 1996. This interpretation ensures that individuals in similar circumstances can seek tenancy transfers without the procedural burden of obtaining a nullity decree. The decision promotes timely access to remedies and aligns with legislative intent to extend protections to cohabitants, irrespective of marital status, provided the marriage is void.

Complex Concepts Simplified

Conclusion

The Tousi v Gaydukova judgment reaffirms the principle that under Schedule 7 of the FLA 1996, parties to a void marriage are treated as cohabitants. This classification ensures that courts have the jurisdiction to transfer tenancy orders without the necessity of a nullity decree, thereby streamlining access to legal remedies for individuals in similar circumstances. The Court of Appeal's decision underscores the autonomy of English law in determining remedies independently of foreign legal systems, promoting clarity and judicial efficiency.