Tousi v Gaydukova

Factual and Procedural Background

The case concerns the jurisdiction of the court to order the transfer of a tenancy under section 53 and Schedule 7 to the Family Law Act 1996 ("FLA 1996"). The provisions allow transfer of tenancy of the family home between spouses or former spouses (paragraph 2 of Schedule 7) and between cohabitants or former cohabitants (paragraph 3 of Schedule 7). The specific question is whether "cohabitants" includes parties to a void marriage or whether such parties fall only within paragraph 2, which requires a divorce, nullity, or judicial separation order before an order can be made.

The parties, referred to as the husband and wife although their marriage was void, underwent a marriage ceremony at the Iranian Embassy in Kyiv, Ukraine in 1997 but expert evidence established that this did not constitute a valid marriage under Ukrainian law. They lived together in Ukraine and subsequently in the UK, with two children, and were granted a joint tenancy of the family home in 2010. They separated in 2019/2020, and the wife applied for transfer of tenancy in September 2021 after a prior occupation order was refused.

The Recorder initially made a transfer of tenancy order in favour of the wife without determining the parties' marital status, considering he had jurisdiction under either paragraph 2 or 3 depending on whether the parties were married or cohabitants. The husband appealed on the ground that the court lacked jurisdiction to make the order before determining the validity of the marriage.

On appeal, the judge found the ceremony was void under Ukrainian law and concluded that the parties were not spouses for the purposes of Schedule 7, applying the relief available under Ukrainian law to determine the availability of relief under English law. The judge upheld the transfer order, implying paragraph 3 applied, but did not expressly address this. The husband appealed again, challenging the judge’s approach to foreign law and the interpretation of the statutory provisions.

Legal Issues Presented

1. Whether the term "cohabitants" in paragraph 3 of Schedule 7 to the FLA 1996 includes parties to a void marriage or whether such parties fall exclusively within paragraph 2.
2. Whether the court has jurisdiction to make a transfer of tenancy order prior to determining the validity of the marriage.
3. Whether the relief or remedy available under foreign law (Ukrainian law) regarding the marriage ceremony should presumptively determine the relief or remedy available under English law.
4. Whether parties to a void marriage must obtain a nullity order before a transfer of tenancy order can be made.

Arguments of the Parties

Appellant's Arguments (Husband)

• The parties' marital status must be determined because the timing and availability of transfer of tenancy orders differ under paragraphs 2 and 3 of Schedule 7 depending on whether the parties are married or cohabitants.
• The judge erred in treating the relief available under Ukrainian law as presumptively determinative of the relief under English law, which is a major departure from established legal principles.
• Paragraphs 2 and 3 of Schedule 7 are mutually exclusive; parties to a void marriage are within paragraph 2 only and can only obtain a transfer order after a nullity order is made.
• English family law generally applies the lex fori to remedies, and foreign law should not constrain English courts in granting relief.
• The judge’s approach undermines the availability of matrimonial relief in cases where parties believed themselves married but are not legally so.

Respondent's Arguments (Wife)

• The only issue requiring determination is whether the parties were validly married; since they were not, the court has jurisdiction under paragraph 3 to make a transfer of tenancy order as cohabitants.
• Parties to a void marriage fall within the definition of cohabitants in s.62(1) as persons living together as if married but not legally married.
• Parliament did not intend that parties to a void marriage must obtain a nullity order before applying for a transfer of tenancy.
• It is possible to construe "nullity" in paragraph 2 as limited to voidable marriages, excluding void marriages.
• The judge’s reasoning on the "ramifications" of foreign law may be interpreted as assessing the foreign law’s attitude but should not fix the English remedy.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analysed the statutory framework of the FLA 1996, focusing on the transfer of tenancy provisions in paragraphs 2 and 3 of Schedule 7. Paragraph 2 applies to spouses or former spouses and requires a divorce, nullity, or judicial separation order before a transfer can be made, with the order taking effect only when such an order is final. Paragraph 3 applies to cohabitants or former cohabitants and allows transfer of tenancy once cohabitation has ceased.

The court confirmed that parties to a void marriage are not legally married and thus fall within the definition of cohabitants under s.62(1) of the FLA 1996. The court rejected the appellant’s submission that paragraphs 2 and 3 are mutually exclusive, holding that parties to a void marriage can fall within paragraph 3 and seek transfer of tenancy without first obtaining a nullity order. This interpretation aligns with the legislative intent to provide prompt remedies, especially for former cohabitants.

Regarding foreign law, the court disagreed with the judge below who had held that the relief or remedy available under Ukrainian law presumptively determines the relief under English law. The court held that foreign law determines only the formal validity of the marriage ceremony (lex loci celebrationis) and does not extend to the "ramifications" or remedies available under foreign law. The English court retains the exclusive jurisdiction to decide the classification of the marriage (void, voidable, or non-qualifying ceremony) and the relief available under English law.

The court emphasised established principles from private international law and family law authorities, noting that extending foreign law’s effect beyond validity to remedies would create uncertainty and complexity. It observed that the parties’ status as cohabitants is sufficient to engage paragraph 3, enabling the court to make a transfer of tenancy order without requiring nullity proceedings.

Holding and Implications

The court DISMISSED the husband's appeal.

The transfer of tenancy order made by the Recorder pursuant to paragraph 3 of Schedule 7 to the Family Law Act 1996 was valid. The parties, being in a void marriage, fall within the definition of cohabitants and are entitled to relief under paragraph 3 without the need for a nullity order. The court rejected the approach that foreign law remedies should presumptively determine English law remedies, affirming that only the formal validity of the marriage is governed by foreign law, while English law governs the availability of relief.

The decision clarifies the interpretation of the FLA 1996 provisions concerning void marriages and cohabitants, confirming that parties to a void marriage can access remedies available to cohabitants without nullity proceedings. This ensures prompt access to justice and avoids unnecessary procedural delays. No new precedent beyond this statutory interpretation and application of established principles was established.