Manouchehr Shilani Tousi v Natalya Gaydukova

For an overseas marriage ceremony, the law of the place of celebration determines formal validity, while personal capacity is governed by the law of domicile. The foreign law may also determine the consequences of invalidity. Those consequences are binding on the English court unless applying them would be obviously contrary to justice.

Where the foreign law treats an unregistered ceremony as wholly nonexistent and confers no matrimonial rights or remedy, the English court may treat it as analogous to a domestic non-qualifying ceremony. The parties are then not spouses for the purposes of tenancy-transfer provisions requiring a conditional divorce or nullity order. A transfer may therefore be ordered under the cohabitant provisions once cohabitation has ceased.

The appellant challenged an order made by Recorder Allen KC transferring a jointly held housing-association tenancy to the respondent. The parties had undergone a marriage ceremony at the Iranian Embassy in Kyiv in 1997, but the ceremony was not registered under Ukrainian law. They later separated, and the respondent applied under Family Law Act 1996, section 53 and Schedule 7, for transfer of the tenancy.

The Recorder made the transfer order without first determining the parties’ marital status. The appellant argued that the court lacked jurisdiction because the parties might have entered a marriage capable of requiring a nullity order. The central issue was whether Ukrainian law treated the ceremony as a void marriage or as wholly nonexistent, and what consequences followed for the English court’s jurisdiction.

1. Appeal dismissed. The Ukrainian ceremony was analogous to a domestic non-qualifying ceremony. It generated no right to a nullity order, and the parties were not to be treated as spouses for the purposes of Schedule 7 to the Family Law Act 1996.
2. Under the rules of private international law, the formal validity of an overseas marriage is governed by the law of the place of celebration, while personal capacity is governed by the law of domicile. Under section 14(1) of the Matrimonial Causes Act 1973, the English statutory grounds do not prevent determination by the applicable foreign law.
3. The foreign-law inquiry extends beyond formal validity where the foreign law also determines the consequences of invalidity. That consequential determination is binding if it is not obviously contrary to justice. Expert evidence must therefore address both the validity of the ceremony and the foreign-law ramifications of any invalidity.
4. The evidence established that the ceremony was invalid ab initio under Ukrainian law, could not be ratified, and would receive no recognition or matrimonial remedy in Ukraine. The parties’ possible cohabitation rights under Ukrainian law arose from cohabitation, not from the embassy ceremony.
5. The foreign consequences were not contrary to justice. The English court accordingly had jurisdiction to treat the parties as cohabitants for Schedule 7 purposes. The Recorder’s tenancy-transfer order was validly exercised.
6. The court additionally stated that any later application by the husband for a divorce or nullity order would have to be dismissed. The judge criticised the continuing uncertainty surrounding non-qualifying ceremonies and observed that definitive clarification required the Supreme Court.

High Court (Family Division): Appeal from Recorder Allen KC’s order of 25 March 2022 transferring the tenancy to the respondent. The appeal was dismissed.