Tousi v Gaydukova (Rev1)  EWHC 404 (Fam)
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Mostyn J had to decide whether the lower court had jurisdiction to order that a tenancy held by the parties jointly should be transferred to the respondent solely.
Though there was a marriage ceremony in Ukraine, it was common ground that the parties did not enter into a valid marriage.
W’s application was made under s.53 of and Schedule 7 to the Family Law Act 1996 (“Schedule 7”).
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 place cannot be earlier than the date on which the order is made final.
In this case, there had been no decree nisi or conditional order of nullity and a central issue for Mostyn J to determine was whether the court should make such an order.
Para 2 applies to a “spouse” who has obtained a nullity of marriage order. This gave rise to the question whether a party to a void marriage can literally be described as a “spouse”.
The court made the order transferring the tenancy, but the husband raised after the hearing that even if not validly married, he and W were spouses for the purposes of para 2 and so in making the order before a decree nisi, the court acted without jurisdiction.
H’s case was that the lower court, in making a transfer of tenancy without waiting for the outcome of a petition, logically must have determined that the parties were cohabitants and impliedly must have found that the parties had not even gone through a form of marriage that could be the subject of a nullity order.
W’s case was that the court should regard the marriage as a “non-marriage” which cannot even give rise to a nullity order. It was submitted that the court should therefore find that the order of tenancy had been correctly made. In the event the court deemed there to be a void marriage, the court was invited to vary the transfer of tenancy order to come into effect on decree of nullity. This would not be possible in circumstances where the hearing had taken place on the basis that the court had immediate jurisdiction; see K v K (Financial Remedy Final Order prior to Decree Nisi)  EWFC 23
From paragraphs 30-62, Mostyn J considered the history of the following:
– The formation of marriage
– The taxonomy of invalidity (noting that a third type of invalid marriage was created by Judges in 2001: the “non-marriage” – a union the voidness of which is so extreme that it falls outside the Nullity of Marriage Act 1971 (now s.11 of the Matrimonial Causes Act 1973) and will not even attract a decree of nullity)
– The nature of, and grounds of, a void marriage
– Nullity and public policy
– The Nullity of Marriage Act 1971
– Domestic ceremonies: lack of form after Akhter
Mostyn J concluded that the existing structural law of the formation and dissolution or annulment of marriages contracted in England and Wales may be graphically shown as set out below:
He then went on to consider overseas ceremonies, saying that it is well established under our rules of private international law that the formal validity of a marriage celebrated overseas (forma) is governed by the lexi loci celebrationis (‘the foreign law’) while personal validity (habiles, consensus) is governed by the law of the party’s domicile.
Once the foreign law has determined the question of validity, and once that determination has been recognised by this court, then the actual relief that is awarded, if any, is the domestic remedy of a grant or refusal of a nullity order. However, Mostyn J held that if the foreign law not only determines the question of validity, but also determines the ramifications of invalidity (if found) then that should also be binding, provided that it is not obviously contrary to justice. He said:
“If, for example, the parties have disregarded the marriage laws of the other country when devising their marriage ceremony to such an extent that the court of the foreign law (‘the foreign court’) would, if the matter came before it, treat the ceremony as being entirely non-existent, giving rise to no entitlement to make a claim in court for anything, then, in my judgment, that too is a determination of a question “relating to” the validity of the ceremony, which is binding, provided that it is not obviously contrary to justice. The determination corresponds to our domestic concept of a non-qualifying ceremony and so the appropriate remedy would be dismissal of the application for a nullity order.
In contrast, if, for example, the foreign law determined that a ceremony was defective for want of compliance with the necessary formalities, and that therefore the marriage was void, but that the ceremony could be later ratified or validated by compliance with the formalities, then such a determination should likewise be regarded as being a question relating to the validity of the ceremony which, under our rules of private international law, is binding. That binding decision is that the marriage is not non-existent and therefore the appropriate remedy to be made by the English court is a nullity order.”
Mostyn J noted that this was the case in Asaad v Kurter  2 FLR 833 where Moylan J at  –  laid out an impressive survey of our private international law which illuminates the difficulty, arising from time to time, in determining whether a defect is one of formal or personal validity. This led to his conclusion at :
‘In summary, in my view:
(a) whether the defect makes the marriage valid or invalid is a matter to be determined by the applicable law, being in the case of the formalities of marriage the law of the place where the marriage was celebrated;
(b) the English court must determine the effect of the foreign law by reference to English law concepts; if the applicable foreign law determines the effect of the defect by reference to concepts which clearly (or sufficiently) equate to the same concepts in English law then the English court is likely to apply those concepts; if the foreign law does not, then it is for the English court to decide which English law concept applies; and
(c) in any event, it if for the English court to decide what remedy under English law, if any, is available for the reasons set out in Burns v Burns  EWHC 2492 (Fam),  1 FLR 813, at para .’
He then went on to state:
‘ I must now apply my view of the law, as set out above, to the facts of this case. As referred to above, I consider that the effect of the expert evidence is simply that, as a legal marriage was not effected, there is no marriage. It is clear that Syrian law has no separate concepts of a marriage being void or voidable or a non-marriage. It would appear, in the circumstances of this case, that a marriage will either be legal or not legal – the marriage in this case is clearly not valid and has been described as being either a ‘non-approved’ marriage or a ‘non-marriage’. As described above, it would be simplistic merely to take the words ‘non-marriage’ or even ‘non-existent’ marriage and apply those words in an English law sense when Syrian law does not have the same terms.
 It is clear to me that the ceremony in the present case is not, in English law terms, a non-marriage. As referred to above, both parties knew they were participating in a marriage ceremony. It was a ceremony which was capable of being made formally valid because permission could have been obtained as part of the registration process following the marriage. It was a ceremony which was capable of conferring the status of husband and wife, if the parties had subsequently complied with the necessary formalities. To adopt Coleridge J’s words, it is not ‘so deficient’ that it can be described in English law terms as a ‘non-marriage’.
 In my judgment, it is a marriage which is not valid as a result of a failure to comply with certain of the required formalities and as such is properly described in English law terms as a void marriage. I do not consider that this is to give the marriage any greater effect than it has under Syrian law because as described above a void marriage could be described as no marriage or a non-existent marriage or, even, a non-marriage but for the way in which these latter terms are used under English law.’
Mostyn J said he would go further than Moylan J:
“In my judgment, the “questions relating to the validity of the ceremony by which the marriage is alleged to have been constituted” which fall to be determined by the foreign law encompass:
i) the formal validity or invalidity of the ceremony; and
ii) the ramifications of that finding under the foreign law.
And provided that it is not contrary to justice, the relief awarded by this court should reflect those ramifications. It follows that expert evidence about the foreign law must address both of the above elements.
Approaching the matter in this way would avoid the awkwardness exemplified by the decision in Hudson v Leigh  EWHC 1306 (Fam) . In that case an elaborate Christian ceremony of marriage took place in South Africa although it was made deliberately defective (for example by leaving out key words at the exchange of vows) so that it did not produce a valid marriage under the local law. The reason for this was that the defendant, an atheist Jew, did not want to be married in a Christian ceremony. Therefore, the parties agreed that there would be a Christian ceremony which looked very much like a marriage, but that they would in fact be later properly legally married in a registry office on their return to this country. Needless to say, their relationship broke down before they could get to a registry office here. Bodey J heard expert evidence as to what South African law, the proper law, would say about the validity or otherwise of the so-called marriage. He rejected the opinion of the wife’s expert that the parties had in fact concluded a valid marriage; he accepted the opinion of the husband’s expert that a court in South Africa would find the ceremony to amount to a void marriage and that there would be a judgment or order issued to that end. In  Bodey J held that under South African law “Miss Hudson would be entitled to a decree of annulment, rather of divorce.”
Notwithstanding that this was the effect of the foreign law Bodey J went on to hold that under English law the ceremony amounted to a “non-marriage”. He even granted a declaration that “the Cape Town ceremony of 23.1.04 did not create the status of marriage as between Miss Hudson and Mr Leigh”. That meant she would have no right to apply for financial relief for herself.
In Bodey J’s judgment the declaration did not fall foul of s.58(5) of the Family Law Act 1986 which prohibits a declaration being made by any court that a marriage was at its inception void. At  he held:
‘In my judgment, the making of such a declaration is not outlawed by s.58(5) if and for so long as it is made to declare that there never was a marriage, as distinct from being a declaration (which is not permitted) that a given marriage was void at its inception.’
I have to say. looking at that decision impartially as a judge, that for the English court to have decided that Miss Hudson could not be granted a decree of nullity when the finding was that she would have been granted exactly that relief by a South African court is extraordinary. The foreign law determined that the ceremony amounted to a void marriage entitling the defendant to a decree of annulment in South Africa. It was the duty of the English court to give effect to the foreign law. The actual decision was completely at variance with the foreign law and made a mockery of the duty to recognise its disposition.
I would also take issue with the declaration made by Bodey J that “there never was a marriage” which was, he said, distinct from a declaration that the marriage was void at its inception. But the authorities which I have cited above show with striking clarity that a decree of nullity in this jurisdiction is no more than a declaration that there is, and never was, a marriage between the parties. Therefore, the declaration made by Bodey J was saying, albeit using different words, that at its inception this was a void marriage, which is prohibited by s. 58(5) of the Family Law Act 1986.
Applying this “ancillary finding is binding unless contrary to justice” test, it is my view as to the following overseas ceremonies that:
i) the grant of a decree of nullity in Burns v Burns was the right decision;
ii) the dismissal of the wife’s nullity petition in Hudson v Leigh was the wrong decision;
iii) the grant of a decree of nullity in Asaad v Kurter  EWHC 3852 (Fam) was the right decision;
iv) the grant of a decree of nullity in K v K  EWHC 3380 (Fam) was the right decision .”
The present case
Mostyn J had an SJE report before him from a Ukrainian lawyer. He made the following findings about Ukrainian law and about the formation and annulment of marriage within Ukraine:
i) The parties had the capacity to marry each other in 1997 according to Ukrainian law. There were no impediments preventing their marriage.
ii) Although two Iranian citizens could have validly married in the Iranian embassy in Kyiv in 1997, this was not possible in this case as the wife was a Ukrainian citizen.
iii) In order validly to marry in Ukraine in 1997 the parties needed to register their marriage officially. Registration in this context means the actual formation of the marriage in what we would call a Registry Office. The core requirement is that the spouses must personally sign the registration record and each must receive a copy of the marriage certificate. The event can be a simple process or an elaborate celebratory affair. The parties never did this.
iv) The marriage of the parties in the Iranian embassy is invalid under Ukrainian law.
v) The 2002 family code is essentially the same as the 1969 family code which was in force at the time of the ceremony. It provides for automatic invalidation of marriages where there was a prior subsisting marriage, or close consanguinity, or mental incapacity. It provides for mandatory invalidation in cases where a judge has found that there was a want of free consent, or where the marriage was a sham. It provides for discretionary invalidation where a judge has found remoter degrees of consanguinity, where in the case of a young person the necessary consent has not been given, and where ill-health has been concealed. Where a marriage is invalidated, either automatically, or in the exercise of judicial discretion, the parties lose all spousal rights and their property is divided between them as if they were cohabitants. However, some spousal relief may be awarded where a party was found to have been unaware of the impediment to forming a valid marriage.
vi) I have been referred to a decision of the Ternopil City District Court dated 25 April 2016 where a Swedish man married in Sweden an Ukrainian woman he had met online. However, after the marriage the husband flatly refused to live with, or have anything to do with, the wife apart from demanding that she pay his debts of €500,000. The wife petitioned for an annulment of the marriage claiming that it was fictitious in that the husband never had an intention of creating a family or acquiring the rights and obligations of the spouse. The claim was upheld the court holding that the wife did not give free consent. The court went on to hold pursuant to article 45(1) of the 2002 family code of Ukraine that a marriage declared invalid by a court decision did not constitute a basis for the rights and obligations of spouses. This provides:
“Invalid marriage (Article 39 of the present Code), as well as a marriage found invalid judicially do not constitute any ground for the persons between whom it has been registered to assume spouses’ rights and responsibilities, as well as rights and responsibilities established for spouses by other laws of Ukraine.”
vii) There is nothing in the code to explain how a marriage invalid for want of due form is dealt with. The nearest provision in the 2002 code is article 48 which refers to a marriage which is “non-concluded”. Such a state of affairs would arise if a marriage is registered (i.e. formed) in the absence of one or both parties. The SJE’s evidence shows that this provision is used where a marriage has been fraudulently contracted for example where a signature of a spouse has been forged, or where an alleged marriage simply did not occur. In such a situation the record of the marriage is removed from the register at the behest of a judge. This would not be an apt process if there was a challenge for lack of due form.
viii) The reason that there is no process is explained very simply and clearly by the SJE. If a marriage said to have been contracted in Ukraine is not recorded in the civil status acts register of Ukraine, then there is no such marriage in Ukraine. The court in Ukraine would decline to hear a claim for recognition of such a marriage as valid or concluded.
ix) If, following their marriage in 1997, the parties had lived in Ukraine and their relationship had broken down there, then they would be treated as if they were unmarried cohabitants. From 2002, under Article 74 of the 2002 Code they would be treated as if they were married de facto and from that point their property would be divided between them by reference to the same rules that would apply if they were married. These rights would derive from their cohabitation and not from their unregistered marriage in the Iranian embassy. Further, under Article 91, with effect from 2002, maintenance may be ordered to be paid to a long-standing cohabitant if that person has become unable to work or is living with their child. Again, this right to claim maintenance derives from cohabitation and has nothing to do with an unregistered marriage.
He found that the marriage was invalid ab initio, and incapable of being later ratified. The closest English concept to the Ukrainian legal treatment of this ceremony is a void marriage.
Mostyn J then considered what primary or consequential matrimonial relief, if any, could be awarded by the Ukrainian Court. The answer was none at all. The SJE was clear that the ceremony gave no rights to either party to seek anything.
He therefore held:
“In my judgment this evidence as to the ramifications of the invalidity of this ceremony is clear and is presumptively binding on me. In my judgment , it would not be obviously contrary to justice to apply it. The way in which it is to be given effect is for the husband’s appeal to be dismissed on the following footing:
i) that the 1997 ceremony was analogous to a domestic non-qualifying ceremony generating no right to the grant of a nullity order;
ii) the parties are thus not to be treated as spouses for the purposes of Paragraph 1 of Schedule 7 to the Family Law Act 1996; and
iii) the power to transfer the tenancy was validly exercised by the Recorder.
The appeal is therefore dismissed on that basis.
Further, if the husband were to present to the Family Court an application for a divorce order, alternatively a nullity order, both applications would have to be dismissed.”
Case Summary by Sophie Smith-Holland, Barrister, St John’s Chambers
For full case, Please see BAILII