Northumberland & Durham Property Trust Ltd v Ouaha

For succession to a statutory tenancy, “the surviving spouse” in paragraph 2(1) of Schedule 1 to the Rent Act 1977 denotes a person who is legally the tenant’s spouse. The phrase is more formal than the deeming provision for a person living with the tenant as wife or husband in paragraph 2(2)(a). A religious ceremony that is not a valid marriage in the country where it took place does not satisfy paragraph 2(1). The court left open whether a valid foreign marriage could suffice. The appeal was dismissed.

Following the death of a statutory tenant, the surviving occupier claimed succession to the tenancy of the property. The Central London Civil Justice Centre, after a two-day trial, held that the occupier was not the tenant’s surviving spouse within paragraph 2(1) of Schedule 1 to the Rent Act 1977 and ordered possession. The appeal was confined to whether an Islamic marriage ceremony conducted in London in 1987 satisfied that provision. Arguments based on a common-law presumption of marriage and an alleged foreign marriage were not entertained. The central issue was whether the ceremony made the occupier the tenant’s surviving spouse.

The appeal was dismissed unanimously. The order for possession was therefore upheld.

1. Scope of the appeal. The court declined to entertain an argument based on the common-law presumption of marriage arising from long cohabitation and repute because it was absent from the grounds of appeal and had not been argued below. It also declined to determine whether the Moroccan documents evidenced a valid foreign marriage. The document appeared to evidence continuation of an existing marriage, and the issue had not been properly raised or fully argued.
2. Meaning of surviving spouse. The court applied Fitzpatrick v Sterling Housing Association [2001] 1 AC 7 and considered Ghaidan v Godin-Mendoza [2004] 2 AC 557, together with Dukali v Lamrani [2012] 2 FLR 1099 and Shagroon v Sharbatly [2013] 2 WLR 1255. In context, “the surviving spouse” in paragraph 2(1) had a formal legal meaning. It referred to a person who was legally the husband or wife of the original tenant.
3. Effect of the ceremony. A person relying on a marriage ceremony must show that the ceremony made that person legally the wife or husband in the country where it took place. The London Islamic ceremony was not a valid marriage under English law and was accepted as a non-marriage. It therefore did not satisfy paragraph 2(1). The court expressly left open whether a valid foreign marriage might qualify and whether the Marriage Acts 1949 to 1986 provided the exclusive route.
4. Deeming provision and human rights argument. The flexibility in paragraph 2(2)(a) was distinct from the formal requirement in paragraph 2(1). It did not apply on the findings because the parties had separated. The argument under section 3(1) of the Human Rights Act 1980 was not pressed and, in any event, the construction was not discriminatory on grounds of religion: persons of any religion could enter valid marriage ceremonies.

1. Court of Appeal (Civil Division): The appeal was dismissed, upholding the possession order and the construction of paragraph 2(1) of Schedule 1 to the Rent Act 1977. [2014] EWCA Civ 571
2. Central London Civil Justice Centre: On 7 November 2012, HHJ Baucher held that the occupier was not the surviving spouse for the purposes of paragraph 2(1) and ordered possession.