Manouchehr Shilani Tousi v Natalya Gaydukova
| Jurisdiction | England & Wales |
| Judge | Lord Justice Moylan,Lord Justice Holroyde,Sir Andrew McFarlane |
| Judgment Date | 06 March 2024 |
| Neutral Citation | [2024] EWCA Civ 203 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: CA-2023-000703 |
[2024] EWCA Civ 203
Sir Andrew McFarlane, PRESIDENT OF THE FAMILY DIVISION
Lord Justice Moylan
and
Lord Justice Holroyde
Case No: CA-2023-000703
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
FAMILY DIVISION
MR JUSTICE MOSTYN
Royal Courts of Justice
Strand, London, WC2A 2LL
Tim Scott KC, Max Lewis and William Horwood (acting pro bono) for the Appellant
Christopher Hames KC and Katherine Gittins (instructed by Caveat Solicitors) for the Respondent
Hearing date: 5 December 2023
Approved Judgment
This judgment was handed down remotely at 10.30am on 6 March 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
The issue at the heart of this case is the jurisdiction of the court to make an order for the transfer of a tenancy under s.53 and Schedule 7 to the Family Law Act 1996 (“the FLA 1996”). These provisions give the court power to transfer the tenancy of, broadly stated, the family home between spouses or former spouses (and civil partners), by paragraph 2 of Schedule 7, and between cohabitants or former cohabitants, by paragraph 3 of Schedule 7.
The specific question raised by this appeal is whether the term “cohabitants” in paragraph 3 includes the parties to a void marriage or whether they are only within the scope of paragraph 2 which gives the court power to make an order “on making a divorce, nullity of marriage or judicial separation order or at any time after making such an order”.
The resolution of this issue has, frankly, been side-tracked by other legal points which, as set out below, are not relevant to that core issue. The provisions for the transfer of a tenancy are clearly intended to provide a prompt remedy in particular in respect of former cohabitants. It is, therefore, very regrettable that some two years after the wife made her application, it remains unresolved.
This is a second appeal being an appeal from Mostyn J's (“the judge”) decision, [2023] EWHC 404 (Fam), on appeal from the unreported decision of Recorder Allen KC (“the Recorder”). As in the judgment below, and as is conventional, I propose to call the parties the husband and the wife although it is accepted that they never contracted a valid marriage.
At the hearing before the Recorder, the husband appeared in person and the wife was represented by Ms Maxwell. At the hearing before the judge, the husband was represented by Mr Lewis and Mr Horwood, both acting pro bono, and the wife was represented by Ms Gittins. At this appeal, the husband was represented by Mr Scott KC (who was unable to attend the hearing), Mr Lewis and Mr Horwood, all acting pro bono, and the wife was represented by Mr Hames KC and Ms Gittins. I am very grateful for their respective written and oral submissions.
The Recorder made a transfer of tenancy order in favour of the wife. As referred to further below, he did not determine whether the parties were married. In his position statement for the hearing before the Recorder, the husband submitted that, because the parties were married, an order could only be made “when proceedings for divorce, nullity or judicial separation … are taken” and that the order “cannot take effect” before the divorce/nullity is finalised. In his judgment, the Recorder noted that there was an issue between the parties as to whether they were married. They agreed that there had been a ceremony in Ukraine in 1997 which the husband contended had created a valid marriage, while the wife contended that it had not. The Recorder decided, however, that it was not necessary for him to determine the issue because, if the parties were married, he had power to make an order under paragraph 2 of Schedule 7 to the FLA 1996; and, if the parties were former cohabitants, he had power to make an order under paragraph 3.
The difficulty with the approach taken by the Recorder is that the power to make an order under paragraph 2 only arises “ on making a divorce, nullity of marriage or judicial separation order or at any time after making such an order (whether, in the case of a divorce or nullity of marriage order, before or after the order is made final)” (emphasis added). In contrast, the power under paragraph 3 arises when the parties “cease to cohabit”.
The husband was granted permission to appeal on one ground, namely, as amended at the hearing before the judge:
“The learned judge was wrong to conclude that he had jurisdiction to make a transfer of tenancy order before having first determined whether:
i. The parties had entered into a marriage which was capable of recognition under English law; or
ii. The parties had entered into a marriage which should be treated as void under English law; or
iii. The parties had not entered into any marriage at all.”
For reasons that are not clear, expert evidence on the validity of the marriage was only obtained very shortly before the hearing before the judge. This established, contrary to the husband's case, that the ceremony in Ukraine had not created a valid marriage. Accordingly, as the judge recorded at [2], it was “common ground that the parties did not enter into a legally valid marriage”.
The judge undertook an extensive analysis of, among other issues, the law relating to nullity of marriage and the relevance of foreign law to the remedy available under English law in respect of an invalid overseas ceremony. I will deal with this in more detail below but, in summary, the judge's dismissal of the appeal was based on his conclusion that English law should apply the relief which would be available to the husband under Ukrainian law which was, at [82], “none at all”. This meant, at [85], (i) that the 1997 ceremony “was analogous to a domestic non-qualifying ceremony generating no right to the grant of a nullity order”; (ii) that the parties “are thus not to be treated as spouses for the purposes of Paragraph 1 of Schedule 7”; and (iii) that “the power to transfer the tenancy was validly exercised by the Recorder”.
It can be seen that, by implication, the judge must have decided that paragraph 3 of Schedule 7 applied. He did not, however, deal with this expressly which is, no doubt, why a Respondent's Notice has been filed to address this issue. I would also note that the husband's skeleton for the hearing before the judge referred to the “distinction” drawn in the legislation “between when a tenancy can be transferred in the context of a void marriage and in respect of … cohabitants” and that it was “the decree or order of nullity which unlocks the power to transfer a tenancy”. The wife's skeleton before the judge accepted that the Recorder had been wrong when he said that he did not have to decide whether the parties' marriage was valid but also submitted that this did not undermine his substantive judgment because the parties were cohabitants with the result that the order had been lawfully made.
The husband's grounds of appeal to this court challenge the judge's decision that Ukrainian law determined whether the parties were, as a matter of English law, entitled to a nullity order and, in turn, that this also determined whether they were spouses for the purposes of Schedule 7. I gave permission to appeal both because I considered that the appeal had a real prospect of success and because it raised an important point of principle.
The wife has filed a Respondent's Notice contending that the judge should have dismissed the appeal because “the parties were never spouses within the meaning of the [FLA 1996] but were cohabitants; accordingly the learned Recorder had jurisdiction to make the order for the transfer of the tenancy”.
For the reasons set out below, it is clear to me that the Recorder had the power to make an order under paragraph 3 of Schedule 7 because the parties were cohabitants within the scope of that provision. However, this is not for the reasons given by the judge with which, again as explained below, I respectfully disagree.
Factual Background
The husband and wife went through a ceremony of marriage at the Iranian Embassy in Kyiv, Ukraine on 12 December 1997. The wife was Ukrainian. The husband was Iranian and had moved to Ukraine to study in the mid-1990s. They remained living in Ukraine until 2000/2001 when they moved to the UK where the husband was studying for a PhD. He is now aged 52 and she is aged 51. They have two children, one of whom is an adult.
In 2010 the parties were granted a tenancy of the family home in their joint names by a Housing Association. The parties separated in 2019/2020. The wife and the younger child left the family home in May 2020 with the elder child joining them shortly afterwards. The husband has remained living there since then.
On 17 September 2021 the wife applied for the transfer of the tenancy of the family home under the FLA 1996. The wife had previously made an application for an occupation order which had been refused.
As set out by the judge, at [26]:
“It is common ground between the parties that they intended to create a valid legal marriage between themselves and that for at least 20 years they thought that they had, at least until the wife first presented her divorce petition in January 2021.”
Although the parties thought they were legally married, the expert evidence obtained for the hearing before the judge clearly established that they were not. As the judge said, at [81]:
“In the light of this evidence it is clear that under its proper law the 1997 marriage in the Iranian embassy in Kyiv is invalid ab initio, and incapable of being later ratified. When choosing between the alternative of a void and voidable marriage the closest English law concept to the...
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