Manouchehr Shilani Tousi v Natalya Gaydukova
| Jurisdiction | England & Wales |
| Judge | Mr Justice Mostyn |
| Judgment Date | 27 February 2023 |
| Neutral Citation | [2023] EWHC 404 (Fam) |
| Docket Number | Case No: FA-2022-000117 |
| Court | Family Division |
[2023] EWHC 404 (Fam)
Mr Justice Mostyn
Case No: FA-2022-000117
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Max Lewis and William Horwood (acted pro bono through Advocate) for the Appellant
Katherine Gittins (instructed by Caveat Solicitors) for the Respondent
Hearing dates: 9 February 2023
Approved Judgment
This judgment was delivered in public. There are no reporting restrictions relating to it or to the appeal hearing.
The appellant contends that Recorder Allen KC did not have jurisdiction to order on 25 March 2022 that a tenancy held by the parties jointly be transferred to the respondent solely. This is my judgment on his appeal against that order.
Although it is common ground that the parties did not enter into a legally valid marriage, for simplicity I shall refer to them respectively as husband and wife 1.
Background
The husband was born on 12 July 1971 and is aged 52. He is an Iranian national. The wife was born on 27 March 1972 and is aged 50. She is a Ukrainian national. Each also holds British citizenship.
In the mid-1990s the husband moved to Kyiv to study for his master's degree in aircraft radio electronic engineering. There he met the wife.
A marriage ceremony took place at the Iranian Embassy in Kyiv on 12 December 1997. The ceremony was conducted in Farsi in the presence of two official witnesses. At the time the husband was an Iranian citizen and the wife was a Ukrainian citizen. This marriage was not “registered” with the Ukrainian State authorities. According to the wife, they were well aware that the marriage should have been registered. On three occasions she attempted to register the marriage but the husband refused to cooperate. It is clear to me that registration in this context means the parties formally marrying according to Ukrainian law in what we would describe as a Registry Office.
It is the husband's case that he chose not to register the marriage because he saw it as a celebratory social event in which he was uninterested.
The parties have two daughters. The elder is aged 23 and has completed a degree; and the younger is aged 14.
The parties moved from Ukraine to the UK in 2001 (in 2000 according to the husband) for the husband to study for a PhD at the University of Wales. The Home Office granted entry clearance to the wife as the validly married spouse of the husband.
On 22 March 2010 the parties were granted by a Housing Association a tenancy in their joint names of a property in Notting Hill.
The parties separated in December 2019. On 21 April 2020, the wife applied for non-molestation and occupation orders. A non-molestation order was granted ex parte on 28 April 2020 and was made final by District Judge Mulkis on 4 May 2020 with an expiry date of 27 April 2021. No admissions were made by the husband and no findings were made against him 2.
On 12 May 2020 the wife and the younger daughter moved out of the property and into a two-bedroom flat provided by the local authority as temporary accommodation. A month later the older daughter joined them.
On 29 June 2020 District Judge Mulkis gave further directions on the wife's occupation order application and the final hearing was heard by Recorder Nice on 3 and 14 December 2020. She made findings against both parties and concluded that the husband's behaviour was sufficient for the non-molestation order to stay in place. She refused, however, to make an occupation order but observed that the wife could apply for a transfer of the tenancy.
On 15 June 2020 the wife petitioned for divorce but later withdrew the application due to lack of funds to pay the fees. On 10 January 2021 the wife petitioned for divorce a second time. On 15 January 2021 Deputy District Judge Rogers refused the wife permission to lodge a petition for divorce without a marriage certificate and suggested that she should apply for a declaration of status under s 55 of the Family Law Act 1986. On 24 February 2021, the wife formally withdrew her petition for divorce.
On 9 June 2021 the wife moved into a different 2-bedroom flat closer to the younger daughter's school. The wife maintains that this housing is unsuitable.
On 17 September 2021 the wife applied for the transfer of tenancy of the former matrimonial home into her sole name supported by a statement of the same date. The application was served on both the Housing Association and on the husband.
The application was made under s. 53 of and Schedule 7 to the Family Law Act 1996 (‘Schedule 7’). So far as they applied to people who were married, or who had been through a form of marriage capable of being the subject of a nullity order, these provisions re-enacted the terms of Schedule 1 to the Matrimonial Homes Act 1983, as amended 3. Paras 2 and 12 of Schedule 7 allow a transfer of a protected or secure tenancy to be made on or after (but not before) a conditional divorce or nullity order or a judicial separation order but in the case of a divorce or nullity order, the date on which the transfer takes effect cannot be earlier than the date on which the order is made final.
No decree nisi or conditional order of nullity has been made in this case. Whether the court should make such an order in this case is the central issue I have to determine. Para 2 of Schedule 7 applies to “a spouse” who has obtained a nullity of marriage order. This gives rise to the question whether a party to a void marriage can literally be described as a spouse. The term a “void marriage” is an oxymoron because the very essence of what is called a void marriage is that the parties were never married in any shape or form and certainly were never spouses. This directly bears on the issues I have to determine and which I address below.
The innovation of the 1996 Act was to extend the power to order a transfer of a tenancy to cohabitants. Paragraph 3 of Schedule 7 permits the court to make such an order where cohabitants cease to cohabit. This puts a cohabitant applicant in a rather better position than a spouse applicant. Unlike the latter, the former does not have to
wait until the court has conditionally terminated their union before his or her application can be heard. Nor does s/he have to wait until the court has finally terminated their union before the transfer can take effect. For cohabitants the only requisite condition for the application to be heard and to take effect is that the cohabitation has ceasedOn 11 October 2021 the husband filed a statement confirming that he opposed the wife's application; the wife filed a statement in response on 18 November 2021.
On 8 November 2021 the Housing Association confirmed they were neither in favour or against a transfer and would abide by the order of the court in compliance with para 14(1) of Schedule 7 of the Family Law Act 1996.
Case management directions were given by Deputy District Judge Burles on 20 October 2021, including for the husband to send to the court the questions that he sought to be put to the wife in cross-examination, which he duly did. Recorder Allen KC heard the application at a final hearing on 15 February 2022. The Recorder asked on the husband's behalf the questions he considered relevant to the issues for the court to determine. The court granted a transfer of tenancy to the wife on 25 March 2022 and ordered that the husband could continue to occupy the property for 14 days from the date of service of the order but had to vacate by 4 April 2022 in any event.
Recorder Allen KC gave a full judgment on 29 March 2022. He stayed by consent the order of 25 March 2022 due to concerns regarding the parties' marital status having been raised after the conclusion of the hearing. Specifically, the husband had pointed out that even if not validly married he and the wife were spouses for the purposes of para 2 and so in making the order before a decree nisi (as it was still called on that day) the court acted without jurisdiction. The court gave directions for the parties to file statements in relation to the marriage ceremony. On 14 April 2022 Recorder Allen KC gave a supplemental judgment and lifted the stay of the order of 25 March 2022. He did not consider that there was a need to try the issue of the validity of the parties' marriage for the purposes of the application before him. He ordered the husband to vacate the property by 12 May 2022 and extended the time for seeking permission to appeal to the same date.
The husband's appeal notice was issued on 3 May 2022. Permission to appeal was granted by Arbuthnot J on 4 May 2022. The appeal was adjourned until 9 February 2023 because Single Joint Expert (“SJE”) evidence from a Ukrainian lawyer was required. Directions were given by Arbuthnot J on the choice of SJE. AGA Partners, Kyiv were instructed and Mrs Aminat Suleymanova provided a SJE report on 31 January 2023. I ordered that the SJE was to answer further questions by 2 February 2023 and a SJE supplemental report was provided by this date. At the hearing I ordered the SJE to answer yet further questions and her written reply was filed on 20 February 2023.
Arbuthnot J granted permission to appeal on the first of the husband's eight grounds and adjourned permission to appeal in relation to the 7 other grounds of appeal to be considered at the appeal hearing on a “rolled-up” basis. The first ground of appeal is that the Recorder was wrong to have made a transfer of tenancy order without first determining whether the parties were legally married. Therefore the other seven grounds depend on whether the judge had jurisdiction to make the transfer of tenancy in the first place. Regarding the first ground of appeal, the husband...
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