Tousi v Gaydukova [2024] EWCA Civ 203
A paradox in financial remedies is that the cases involving the fewest assets are often the hardest ones to resolve. That isn’t to say that ‘big money’ cases are easy; far from it. But whereas the complexity in a significant asset case tends to arise at the computational stage (valuing the shareholdings, carried interest, investigating hidden assets, considering where to cut the deck between marital and non-marital assets); in a small asset case, the difficulties arise at the distributional stage.
Where there is only one meaningful asset, such as the tenancy of the family home, the outcome may have to be binary, which might leave one party reliant on the assistance from the State. Thanks to the Government’s withdrawal of legal aid, these questions tend to arise in cases where one or both parties cannot afford representation and act in person, where bundles have been inadequately prepared, and where case management directions may have been overlooked.
This blog concerns the case of Tousi v Gaydukova, in which the court ordered a transfer of tenancy in favour of the ‘wife’. The ‘husband’s’ appeal was heard by Mostyn J, and a second appeal has now been dismissed by the Court of Appeal. The key dates are as follows:
25 March 2022 Final hearing before Recorder Allen KC
14 April 2022 Supplemental judgment of Recorder Allen KC
4 May 2022 Permission to appeal granted by Arbuthnot J
27 February 2023 Appeal dismissed by Mostyn J ([2023] EWHC 404 (Fam))
6 March 2024 Court of Appeal dismissal of appeal ([2024] EWCA Civ 203)
Facts
The applicant or ‘wife’ (Gaydukova) is a Ukrainian national who holds British citizenship, whereas the respondent or ‘husband’ (Tousi) is an Iranian national. The parties underwent a ceremony of marriage in Kyiv in 1997, conducted in Farsi in the Iranian Embassy, which was not registered with the Ukrainian State, as is required under local law. There was, accordingly, a substantial dispute as to whether the parties had been legally married. In this blog, the terms ‘marriage’, ‘husband’ and ‘wife’ have been used advisedly (with inverted commas).
In or around 2000 the parties relocated to the UK, and in March 2010 they were granted an assured tenancy of a property in Acton by the local housing association. This became the family home of the parties and their two daughters, now aged 24 and 15. The parties separated in December 2019, when the ‘wife’ moved out of the family home. In April 2020 she obtained an ex parte non-molestation order. In June 2020 following a contested hearing the court continued the non-molestation order but refused to make an occupation order in the ‘wife’s’ favour.
‘Wife’ then petitioned for divorce, at which stage the court suggested she should apply for a declaration under s.55 of the Family Law Act 1986 to resolve the uncertainty as to its status. Rather than pursue that avenue, the ‘wife’ withdrew her divorce petition and applied in September 2021 for a transfer of tenancy.
Transfers of tenancy under Family Law Act 1996, Schedule 7
The power to transfer a tenancy is set out at s.53 and Schedule 7 of the Family Law Act 1996, which will be more familiar to practitioners because of Part IV (ss.30-63) which covers non-molestation and occupation orders. The court’s powers arise in relation to ‘relevant’ tenancies, as defined at Sch 7, para 1, which includes assured tenancies under the Housing Act 1988 and protected tenancies under the Housing Act 1985, where the landlord is a local authority or housing association, but not assured shorthold tenancies in the private renting sector.
Schedule 7 provides that the court can transfer a relevant tenancy in one of two scenarios: following a divorce order (etc.) (“paragraph 2”) or where cohabitants cease to cohabit (“paragraph 3”). While an order under paragraph 2 can only be made “upon” the making of a divorce order (and not before), an order under paragraph 3 can be made at any time once the cohabitants cease to cohabit.
Where the court has jurisdiction to transfer a tenancy, it should have regard to the short checklist of factors at Schedule 7, paragraph 5, and
- In a paragraph 2 case, the checklist of factors at s.33(6) (a-c) of the Family Law Act 1996, i.e. the parties housing needs and resources, their financial resources more generally, and the likely effect of any order on the health, safety and wellbeing of the parties and relevant children; and
- In addition, in a paragraph 3 case (cohabitation), the checklist of factors at s.36(6)((e-h) of the Family Law Act 1996, which adds to the s33(6)(a-c) factors, consideration of the nature of the parties’ marriage, the duration of cohabitation etc.
It may be apparent that the Family Law Act 1996 is not an easy statute to navigate. Anyone who has sought an occupation will be familiar with the mental gymnastics involved in the balance of harm test, e.g. at s. 33(6)-(7). Practitioners with longer memories may recall its unhappy history: Part II, which related to divorce, was never brought into effect and was finally repealed in 2014; the provision for payments of bills at s.40 was found by the Court of Appeal to be seriously defective and unenforceable (Nwogbe v Nwogbe [2000] 2 FLR 744).
First instance decision of Recorder Allen KC
On 15 February 2022 Recorder Allen KC heard the application and reserved judgment. Six weeks later on 26 March 2022, the learned judge handed down a detailed judgment which recorded that there was a factual dispute between the parties as to the status of their marriage, which did not fall to be determined at that stage. Having considered the parties’ evidence and the statutory factors, the court transferred the tenancy to the ‘wife’, with the ‘husband’ giving vacant possession by 4 April.
The ‘husband’ then drew to the court’s attention the jurisdictional issue that if the parties were married (as the husband contended) the court could not transfer a tenancy under paragraph 2 until a divorce order, or similar, was made. In response, Recorder Allen KC observed that the status of the parties’ marriage, which would have required expert evidence, had not been set down for hearing in the earlier case management directions orders, had not been addressed in the parties’ witness statements or even the position statements. However, by consent, the order was stayed.
In a detailed supplemental judgment dated 14 April 2022, to the effect that: (i) the jurisdictional issue raised by the husband could be resolved by the court proceeding on the basis that the parties were former cohabitants (i.e. ‘paragraph 3’), (ii) there was no need to resolve the vexed question of the status of whether or not the parties had been validly married, whereby (iii) the stay would therefore be lifted, although the ‘husband’ was allowed additional time before giving vacant possession.
Appeal before Mostyn J ([2023] EWHC 404 (Fam))
The ‘husband’ appealed on ten grounds. He was granted permission by Arbuthnot J on a single ground, that the court erred in making a transfer of tenancy order without first determining whether the parties were legally married; consideration of the other seven grounds was adjourned to a ‘rolled up’ appeal hearing before Mostyn J. Arbuthnot J also permitted the parties to instruct a Ukrainian lawyer as a single joint expert to report on the status of the parties marriage.
In a magisterial judgment, Mostyn J surveyed the history of the legal formation of a marriage from 1140 AD when Camaldolese monk Gratian commenced his great work of codification of canon law (see paras. 30-79) concluding with a flow chart setting out the complexities of whether under English law a marriage was valid, void or voidable (para 62). From para 63, the learned judge deals with overseas ceremonies and concludes that the lex loci celebrationis, the foreign law (Ukrainian in this case) should determine not only the essential validity of the marriage but also ‘the ramifications of that finding under the foreign law… provided that it is not contrary to justice, the relief awarded by this court should reflect those ramifications” (para 73).
On the facts of the case, Mostyn J cited with approval the SJE’s conclusion that “…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” (para 80(viii). In summary, Mostyn J concluded that the marriage was void ab initio, and that the power to transfer the tenancy had been validly exercised by the recorder (para 85). Accordingly the husband’s appeal was rejected.
Second appeal before Court of Appeal [2024] EWCA Civ 203)
The specific question raised by the husband’s second appeal was whether the term ‘cohabitants’ (i.e. under Schedule 7, paragraph 3) includes parties to a void marriage. Moylan LJ observed at the outset that:
“[3]. 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.”
Moylan LJ observed at para 10 that “…it can be seen that, by implication, the judge [Mostyn J] must have decided that paragraph 3 of Schedule 7 applied. He did not, however, deal with this expressly”.
The ‘husband’, now represented by leading and junior counsel on a pro bono basis, made three main submissions: (i) that the parties marital status needed to be determined before the court could make a transfer of tenancy under paragraph 2, (ii) that the judge (Mostyn J) had been wrong to conclude that Ukrainian law ‘presumptively’ determined the relief available under the English courts, and (iii) that paragraphs 2 and 3 of Schedule 7 are mutually exclusive: a party to a marriage cannot also proceed as a cohabitant, thereby side-stepping the requirement that an order be made “upon” the making of a divorce order etc.
The ‘wife’, now similarly represented by leading and junior counsel, took a rather more direct approach to the issue – that if the parties were not validly married, the court could proceed to make an order under paragraph 3, on the basis that they had been cohabitants.
Between paragraphs 46 and 61 Moylan LJ reviewed the legal framework and concluded that the relationship between paragraphs 2 and 3 (i.e. whether a party could seek a transfer of tenancy as a spouse and also as a cohabitant) was a ‘straightforward question of statutory interpretation’, which
“[51] …involves an objective assessment of the meaning which a reasonable legislature as a body would be seeking to convey in using the statutory words which are being considered. Lord Nicholls, again in Spath Holme [2001] 2 AC 349, 396, in an important passage stated:
‘The task of the court is often said to be to ascertain the intention of Parliament expressed in the language under consideration. This is correct and may be helpful, so long as it is remembered that the ‘intention of Parliament’ is an objective concept, not subjective. The phrase is a shorthand reference to the intention which the court reasonably imputes to Parliament in respect of the language used. It is not the subjective intention of the minister or other persons who promoted the legislation. Nor is it the subjective intention of the draftsman, or of individual members or even of a majority of individual members of either House … Thus, when courts say that such-and-such a meaning ‘cannot be what Parliament intended’, they are saying only that the words under consideration cannot reasonably be taken as used by Parliament with that meaning.’”
The Court of Appeal (McFarlane P and Holroyde LJ concurring with Moylan LJ) concluded as follows:
- The court would have to determine that the parties were validly married, because: “…if the parties were married, paragraph 2 and not 3 would apply so that an order could only be made “on making a divorce, nullity of marriage or judicial separation order or at any time after making such an order” and could only take effect, pursuant to paragraph 12, when the divorce/nullity order was made final” (para 62);
- However the parties to a void marriage are within the scope of paragraph 3 (cohabitants) as well as paragraph 2. With a void marriage, “…the remedy of a nullity decree is available but available at the option of the parties (or a person with sufficient interest). Accordingly, parties to a void marriage have the same status as unmarried people who are living together and therefore are, in general terms, cohabitants.” (para 64);
- Similarly, parties to a void marriage can fall within the definition of cohabitants in s.62(1). At para 68:
“…once the power to make a transfer of tenancy order was extended to cohabitants it makes evident good sense that parties to a void marriage should no longer be required to start nullity proceedings for the purposes of obtaining immediate access to justice in this way. Accordingly, adopting the formulation from R (O) v SSHD, at [31], “an objective assessment of the meaning” of the provisions of the FLA 1996 leads to the clear conclusion that parties to a void marriage can be cohabitants for the purposes of paragraph 3 of Schedule 7.”
- It was unnecessary for the judge (Mostyn J) to consider whether a void marriage was ‘analogous to a domestic non-qualifying ceremony’: “…Once it was clear that the marriage was at least void, the court had jurisdiction to make an order under paragraph 3” (para 69);
- However, the Court of Appeal disagreed with Mostyn J’s view that “the binding determination by the foreign law does not necessarily come to a halt at the question of the validity of the ceremony”
“…the remedy or relief which would or might be available if proceedings were taking place in the country in which the marriage or alleged marriage took place are irrelevant to the remedy or relief available under English law. Also, for the avoidance of doubt, it is not necessary to consider what remedy or relief would be available for the purposes of deciding how the marriage is to be classified as a matter of English law: i.e. void, voidable or a non-qualifying ceremony. This is wrong as a matter of principle and would add an unnecessary factor which would potentially be difficult and expensive to determine.” (para 71)
“…The simple principle is that the formal validity, and only the formal validity, of a marriage is determined by the law of the place in which the marriage was celebrated. This clear principle has been well established certainly since Sottomayor v De Barros (No. 1) and has not previously been questioned. Nor has it previously been suggested that this principle might have wider “ramifications” as suggested by the judge. Indeed, with all due respect to the judge, there is nothing in any of the relevant authorities which supports his view that the principle extends to the “ramifications of invalidity”. The principle is confined to the simple question of the formal validity (or invalidity) of the marriage and goes no further.” (para 72)
In conclusion, the Court of Appeal dismissed the ‘husband’s’ appeal: the recorder had jurisdiction to make a transfer of tenancy pursuant to paragraph 3.
Commentary
We are all creatures of habit. Even the most seasoned family law practitioner and judge is more comfortable on the well-travelled paths of the Matrimonial Causes Act 1973 than the rarely visited mountain passes of Schedule 7 of the Family Law Act 1996. Particularly in a case like Tousi v Gaydukova where the status of the parties’ marriage was only drawn to the recorder’s attention after judgment was handed down.
It is axiomatic that the lex loci celebrationis – Ukrainian law – would determine the essential validity of this marriage. The SJE’s evidence, when it eventually arrived, ruled out a finding that this was a valid marriage under Ukrainian law. Rather, it showed that under Ukrainian law this marriage was absolutely null and utterly void. In consequence, under English law this could only have been seen as either a void marriage or a “non-marriage”. Therefore, as Moylan LJ pointed out at para 66, given the definition of cohabitants at s. 62 of the Family Law Act 1996, paragraph 3was going to apply come what may, and the transfer of the tenancy was going to stand.
It could be argued that having taken on board the SJE evidence, Mostyn J should have summarily revoked Arbuthnot J’s grant of permission to appeal, and refused PTA on all other grounds, on the footing that the appeal was doomed as the tenancy transfer was going to stand, come what may. If that is correct, it could also be argued that Mostyn J’s learned exegesis was somewhat superfluous and that the subsequent grant of permission for a second appeal was misconceived.
The interesting academic question left unanswered by Moylan LJ’s judgment is what the decision of the English Court would have been had the question of the validity of this marriage come before the court in the normal way i.e. via a nullity petition[1]. Would the decision have been to grant a decree of nullity, or would it have been to dismiss the petition? Mostyn J’s judgment says that the petition should be dismissed, because we should respect the consequences or ramifications of the finding that would be made under Ukrainian law, namely that this marriage is absolutely null and utterly void and is in character akin to our concept of a “non-marriage”. Moylan LJ would not allow those consequences to be taken into account, but his judgment does not give a guide how as a matter of English public policy the court should treat a marriage celebrated in a foreign place which was celebrated in blatant breach of the requirements of form in that place. Thus, it is it is hard to predict on the facts of this case whether the outcome would have been the grant of a decree of nullity or a dismissal of the petition.
Alexander Chandler KC
9 March 2024
[1] the recorder’s judgment pre-dated the coming into force on 5 April 2022 of the Divorce, Dissolution and Separation Act 2020 with, among other things, the change of language for divorce and nullity procedure
Family Brief 