Manouchehr Shilani Tousi v Natalya Gaydukova

For purposes of sections 53 and 62(1) and Schedule 7 to the Family Law Act 1996, parties to a void marriage are not married to each other as a matter of status. They may therefore be cohabitants within paragraph 3 if living together as if married. Paragraphs 2 and 3 are not mutually exclusive, so a nullity order is not a precondition to a tenancy transfer under paragraph 3. The law of the place of celebration determines only the formal validity of an overseas marriage ceremony. Foreign-law remedies do not determine its English classification or limit remedies available under English law. The appeal was dismissed because the parties’ ceremony created a void marriage and the Recorder had jurisdiction under paragraph 3.

The parties underwent a marriage ceremony at the Iranian Embassy in Kyiv in 1997 and later held a joint tenancy of their family home in England. After their separation, the wife applied under the Family Law Act 1996 for transfer of the tenancy.

The Recorder made the transfer order without deciding whether the ceremony had created a valid marriage. Mostyn J dismissed the husband’s appeal after expert evidence established that the ceremony was invalid under Ukrainian law. He treated the absence of any Ukrainian matrimonial remedy as relevant to the English classification and concluded that the order was valid. The central issues before the Court of Appeal were whether parties to a void marriage are cohabitants for paragraph 3 of Schedule 7, and whether foreign law determines the remedies available under English law.

Appeal dismissed unanimously. The Recorder had jurisdiction to make the transfer of tenancy order under paragraph 3 of Schedule 7. The merits of that order were no longer open to challenge, but enforcement was extended by six weeks from the date of the Court of Appeal’s order.

1. A void marriage does not alter the parties’ legal status. It may be treated as never having taken place without a decree of nullity, consistently with De Reneville v De Reneville [1948] P 100, p.111, and Kassim v Kassim [1962] P 224. Parties to a void marriage are therefore, in general terms, in the same position as unmarried cohabitants.
2. Under section 62(1) and paragraph 3 of Schedule 7 to the Family Law Act 1996, the parties must be neither married nor civil partners and must have lived together as if they were a married couple or civil partners. Whether those conditions are satisfied is evidential. They were satisfied here.
3. Paragraphs 2 and 3 are not mutually exclusive. Paragraph 2 includes parties to a void marriage and ordinarily requires a divorce, nullity or judicial separation order. That does not exclude a qualifying party from using paragraph 3, nor require nullity proceedings before obtaining immediate access to the tenancy-transfer remedy. Paragraphs 12 and 13 supplied no contrary implication.
4. The lex loci celebrationis determines only the formal validity of an overseas marriage ceremony. Sottomayor v De Barros (No.1) (1877) 3 PD 1 (CA) and Berthiaume v Dastous [1930] AC 79 did not support extending that principle to foreign remedies. Once invalidity is established, the English court determines the English classification and available relief. That approach accords with Burns v Burns [2007] EWHC 2492 (Fam) and Asaad v Kurter [2014] 2 FLR 833. Mostyn J was wrong to treat Ukrainian remedies as controlling or relevant to the English remedy.
5. The objective, contextual approach to statutory interpretation described in Regina (O) v Secretary of State for the Home Department [2023] AC 255 led to the conclusion that parties to a void marriage can be cohabitants within paragraph 3.

Court of Appeal (Civil Division) dismissed the husband’s appeal and upheld the jurisdiction to transfer the tenancy under paragraph 3 of Schedule 7: [2024] EWCA Civ 203.

• High Court of Justice, Family Division (Mostyn J) dismissed the appeal from the Recorder’s order: [2023] EWHC 404 (Fam).
• Recorder Allen KC made an order transferring the family-home tenancy to the wife. The decision was unreported.