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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Tousi v Gaydukova (Rev1) [2024] EWCA Civ 203 (06 March 2024) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2024/203.html Cite as: [2024] 2 FCR 647, [2024] Fam 225, [2024] HLR 37, [2024] 2 FLR 587, [2024] EWCA Civ 203, [2024] WLR(D) 107, [2024] 2 WLR 1142 |
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ON APPEAL FROM HIGH COURT OF JUSTICE
FAMILY DIVISION
MR JUSTICE MOSTYN
Strand, London, WC2A 2LL |
||
B e f o r e :
LORD JUSTICE MOYLAN
and
LORD JUSTICE HOLROYDE
____________________
MANOUCHEHR SHILANI TOUSI | Appellant/ Respondent |
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| - and - |
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NATALYA GAYDUKOVA | Respondent/Applicant |
____________________
Christopher Hames KC and Katherine Gittins (instructed by Caveat Solicitors) for the Respondent
Hearing date: 5 December 2023
____________________
VERSION
OF APPROVED JUDGMENT
Crown Copyright ©
Lord Justice Moylan:
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".
very
regrettable that some two years after the wife made her application, it remains unresolved.
valid
marriage.
very
grateful for their respective written and oral submissions.
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 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 asvoid
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".
validly
exercised by the Recorder".
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.
version
- see original .rtf file to
view
diagram or picture].
Factual Background
"It is common ground between the parties that they intended to create avalid
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."
"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 avoid
and
voidable
marriage the closest English law concept to the Ukrainian legal treatment of this ceremony is a
void
marriage."
Proceedings
valid
marriage under Ukrainian law. An additional report was obtained following the hearing before the judge to deal with issues which arose during the course of that hearing.
valid
marriage. It was further submitted that "it is the decree or order of nullity which unlocks the power to transfer a tenancy" because "Parliament has expressly drawn a distinction between when a tenancy can be transferred in the context of a
void
marriage and in the context of mere cohabitation". It was suggested that the latter would also include parties to a "non-marriage" although it was recognised that this did not sit easily with the general proposition expressed by Lord Greene MR in De Reneville
v
De Reneville [1948] P 100, at p.111, namely that a
void
marriage was one which would be regarded "as never having taken place" and which could "be so treated by both parties to it without the necessity of any decree annulling it". It was also submitted that, in any event, the remedy or relief available was a matter of English law which, in this case, would be a nullity decree as the 1997 ceremony had created a
void
marriage not a non-marriage. Burns
v
Burns [2008] 1 FLR 813 and Assad
v
Kurter [2014] 2 FLR 833 were relied upon.
validly
married. It was submitted that, because "the parties were not legally married" (as established by the expert evidence), they were cohabitants within the meaning of paragraph 3 so the order had been "lawfully made". In addition, however, it was also submitted: (i) that the 1997 ceremony had created a "non-marriage"; and (ii) that, if the court concluded that the marriage was
void,
the order should be
varied
to take effect from the date of the decree of nullity.
valid
legal marriage between themselves and that for at least 20 years they thought that they had". The judge then, under separate headings, addressed the "Formation of Marriage"; "the taxonomy of invalidity"; "the nature of, and grounds for, a
void
marriage"; "nullity and public policy"; "the Nullity of Marriage Act 1971"; "domestic ceremonies"; and "overseas ceremonies". I do not propose to summarise the extensive analysis of these issues as set out in the judgment. I would just note that, when dealing with the nature of a
void
marriage, the judge referred to De Reneville
v
De Reneville; Kassim
v
Kassim [1962] P 224; and the Law Commission's 1970 Report on Nullity of Marriage (Law Com. No. 33) ("1970 Report"). I deal with these further below.
validity
of a marriage celebrated overseas (forma) is governed by the lexi loci celebrationis". He then quoted from Sottomayor
v
De Barros (No.1) (1877) 3 PD 1 (CA), per Cotton LJ at p.5:
'The law of a country where a marriage is solemnised must alone decide all questions relating to thevalidity
of the ceremony by which the marriage is alleged to have been constituted; but, as in other contracts, so in that of marriage, personal capacity must depend on the law of domicile." (the judge's emphasis).
And also from Berthiaume
v
Dastous [1930] AC 79, 83 (PC).
validity
of the ceremony". He referred to Burns
v
Burns by way of example.
"[68] It is undoubtedly true that once the foreign law has determined the question ofvalidity,
and once that determination has been recognised by this court, then the actual relief that is awarded, if any, is the domestic remedy of the grant or refusal of a nullity order. That seems to me to state the obvious. However, this principle does not tell us precisely what the remit of the foreign law determination is. In my judgment, the binding determination by the foreign law does not necessarily come to a halt at the question of the
validity
of the ceremony. If the foreign law not only determines the question of
validity,
but also determines the ramifications of invalidity (if found), then in my judgment that corollary should also be binding, provided that it is not obviously contrary to justice.
[69] 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" thevalidity
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.
[70] 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 wasvoid,
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."
The judge appears to acknowledge initially, at the beginning of [68], that foreign law determines only the question of
validity.
However, he then goes on to conclude that foreign law "does not necessarily come to a halt at the question of
validity"
but should also, if "not obviously contrary to justice", determine "the ramifications of invalidity". By this he appears to mean, principally, whether any remedy or relief would be available in the foreign court which "ramifications … should also be binding".
v
Kurter [2014] 2 FLR 833, the judge concluded:
"[73] For the reasons stated above, I would go further than Moylan J. In my judgment, the "questions relating to thevalidity
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 formalvalidity
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."
The effect of the judge's approach, in summary, was that the relief available under the foreign law should determine, "if not contrary to justice", the relief available under English law.
"When choosing between the alternative of avoid
and
voidable
marriage the closest English law concept to the Ukrainian legal treatment of this ceremony is a
void
marriage."
He dealt further with the marriage ceremony at [83]:
"It is true that the parties went through a marriage ceremony which had the capability of beingvalid
under Ukrainian law if both parties had been Iranian citizens. Further, it seems likely that the marriage was
valid
under Iranian law. It is true that the parties have relied on the marriage as being
valid;
and they secured the wife's entry into this country on the basis that they were
validly
married. However, while Ukrainian law unsurprisingly does not have a concept of a non-marriage, the SJE is equally clear that the ceremony in the Iranian embassy gave no rights to either party to seek anything."
void
marriage, the judge went on to apply the approach he had formulated, at [73] (see paragraph 29 above) and considered, at [82], "what primary or consequential matrimonial relief, if any, could be awarded by an Ukrainian court". His answer was, "none at all". He considered this, at [85], a ramification of the invalidity of the 1997 ceremony which was "presumptively binding on him" and which it would "not be obviously contrary to justice to apply". The result was, as set out at paragraph 9 above, that "the 1997 ceremony was analogous to a domestic non-qualifying ceremony generating no right to the grant of a nullity decree". The parties were, therefore, not spouses for the purposes of paragraph 1 of Schedule 7.
Submissions
void
such that, under English law, they were entitled to bring nullity proceedings bringing them within the scope of, and only of, paragraph 2 of Schedule 7. Accordingly, a transfer of tenancy order could only be made on the making of a nullity order.
void.
This was a conclusion which was clearly supported by the facts of this case and was in accordance with established precedent. It was submitted that the judge's subsequent analysis was wrong and wrongly led him to conclude that there was no entitlement to a nullity decree. In his oral submissions, Mr Lewis submitted that the judge "began to go wrong" at [49], when he said:
"The root cause of the chaos in which the law of nullity finds itself is the extraordinary concept, enshrined in the Matrimonial Causes Act 1973, that a decree of nullity in respect to avoid
marriage (which, as has been seen, does no more then to record the necessary facts and to declare that there is not and has never been a marriage) nonetheless entitles both parties to those proceedings to apply to the court for ancillary relief as if they had been married all along. It is the existence of this right that has caused judges to reach for the weapon of public policy to stop a case in its tracks or to invent entirely new concepts, arguably at
variance
with statute."
Mr Lewis submitted that the judge's assessment, that the legislative choice to grant rights following a nullity decree was an "extraordinary concept", may have led him to adopt a flawed approach when deciding the relief available in the present case. He went further and suggested that the judge put "the cart before the horse" in that he decided, first, that the husband should not be entitled to bring a claim for nullity and financial remedies and, then, "did so" by denying him these rights.
v
De Barros (No. 1) when he decided, at [69], that the relief or remedy available under the foreign law is "a question 'relating to' the
validity
of the ceremony". This was wrong because, it was submitted, the relief available, or not available, is determined by the law governing the dissolution and annulment of marriages, not the law governing the formation of marriages. This was "an important conceptual and juridical distinction".
validity
of foreign marriages is an exception to this general approach and, it was submitted, there is no good reason to extend that exception to the decision whether to grant any (and if so, what) remedy. That is a matter of English law and the English court "should not be constrained by the approach of the foreign court, let alone treat it as presumptively dispositive". Why, Mr Lewis asked during the course of his submissions, should the remedies available under Ukrainian law in the event of proceedings taking place there have any relevance to the remedies available in English proceedings consequent on the breakdown of their relationship here? In his submission, the former have "no place" in the determination of the latter, especially when, he added, the effect of the judge's approach was to disentitle the parties from obtaining the English law remedy that would otherwise be available to them.
v
Akhter & Ors [2021] Fam 277.
v
Burns and Berthiaume
v
Dastous the foreign law provided a remedy based on the doctrine of "putative marriage" in California and Quebec respectively. I would also note that since 2002 under Ukrainian law parties to, what is described in translation as, a "so-called in-fact marriage relations" have rights and remedies in respect of property acquired during their cohabitation.
void
marriage is not a "cohabitant" within the scope of paragraph 3 but is within, and only within, the scope of paragraph 2. The latter's provisions make clear that this paragraph applies to a party to a
void
marriage and that an order can only be made in conjunction with a "nullity of marriage order". The definition of cohabitants in s.62 of, and the provisions of paragraphs 12 and 13 of Schedule 7 to, the FLA 1996 were also relied upon, in particular to seek to meet the case advanced on behalf of the wife that only
voidable
marriages are within paragraph 2. None of these provisions, it was submitted, suggest that
void
and
voidable
marriages are to be treated differently. Similarly, the term "party to [a/the] marriage" is used in the Matrimonial Causes Act 1973 ("the MCA 1973") and the Matrimonial and Family Proceedings Act 1984 in respect of a party to a
void
marriage as well as a
voidable
marriage. It was submitted that this distinction should not be introduced into the FLA 1996 when there is no such distinction in respect of financial remedies available, for example, under the MCA 1973.
validly
married, it was submitted that the court had power to make a transfer of tenancy order pursuant to the provisions of s.53 and paragraph 3 of Schedule 7 because the parties were cohabitants as defined by s.62(1). This issue had not been expressly addressed by the judge and was, therefore, supported by the Respondent's Notice.
valid
marriage. It had been unnecessary for the judge to decide whether the marriage was
void
or a non-qualifying ceremony as, in either case, the court had power to make a transfer of tenancy order pursuant to the provisions of paragraph 3 of Schedule 7. In both circumstances, the parties were cohabitants for the purposes of that paragraph; cohabitants being defined by s.62(1) as "two persons who are neither married to each other nor civil partners but are living together as if they were a married couple or civil partners". Accordingly, even if the marriage was
void
and the parties had the right to seek a nullity decree, their rights under Schedule 7 were not confined to paragraph 2. Parliament cannot have intended that parties to a
void
marriage were required to obtain a nullity order before being able to obtain a transfer of tenancy order.
voidable
marriages and not including
void
marriages.
Legal Framework
Section 53: "Transfer of certain tenancies
Schedule 7 makes provision in relation to the transfer of certain tenancies on divorce etc. or on separation of cohabitants."
Section 62 defines "cohabitants" as:
"(1) For the purposes of this Part —
(a) "cohabitants" are two persons who are neither married to each other nor civil partners of each other but are living together as if they were a married couple or civil partners; and
(b) "cohabit" and "former cohabitants" are to be read accordingly, but the latter expression does not include cohabitants who have subsequently married each other or become civil partners of each other."
As is frequently, if not invariably, the case in legislation there is no definition of spouse in the FLA 1996. Its meaning is only addressed in paragraph 1 of Schedule 7 which provides: "'spouse', except in paragraph 2, includes (where the context requires) former spouse". There is a similar provision in paragraph 1 in respect of cohabitant: "'cohabitant', except in paragraph 3, includes (where the context requires) former cohabitant".
Paragraphs 2 and 3 of Schedule 7 provide as follows (a Part II order includes a transfer of tenancy order):
"2(1) This paragraph applies if one spouse or civil partner is entitled, either in his own right or jointly with the other spouse or civil partner, to occupy a dwelling-house byvirtue
of a relevant tenancy.
(2) The court may make a Part II order –
(a) 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), or
(b) at any time when it has power to make a property adjustment order under Part 2 of Schedule 5 to the Civil Partnership Act 2004 with respect to the civil partnership.
3(1) This paragraph applies if one cohabitant is entitled, either in his own right or jointly with the other cohabitant, to occupy a dwelling-house byvirtue
of a relevant tenancy.
(2) If the cohabitants cease to cohabit, the court may make a Part II order."
In addition, paragraph 12 of Schedule 7 provides:
"12. The date specified in a Part II order as the date on which the order is to take effect must not be earlier than -
(a) in the case of a marriage in respect of which a divorce or nullity of marriage order has been made, the date on which the order is made final;
(b) in the case of a civil partnership in respect of which a dissolution or nullity order has been made, the date on which the order is made final."
Paragraph 13 provides:
"13(1) If after the making of an order dissolving or annulling a marriage either spouse remarries or forms a civil partnership, that spouse is not entitled to apply, by reference to the making of that order, for a Part II order.
(2) If after the making of a dissolution or nullity order either civil partner forms a subsequent civil partnership or marries, that civil partner is not entitled to apply, by reference to the making of that order, for a Part II order.
(3) In sub-paragraphs (1) and (2) -
(a) the references to remarrying and marrying include references to cases where the marriage is by lawvoid
or
voidable,
and
(b) the references to forming a civil partnership include references to cases where the civil partnership is by lawvoid
or
voidable."
voidable
marriages and does not include
void
marriages. The remedy granted in respect of both has always been a nullity decree. The only difference is the date on which the marriage is treated as being
void.
Violence
and Occupation of the Family Home (Law Com. No. 207). This pointed out, at [2.20], that:
"If the parties are married, long term solutions are available in the form of an order transferring the tenancy under section 7 of and Schedule 1 to the Matrimonial Homes Act 1983 or ancillary to divorce proceedings under section 24 of the Matrimonial Causes Act 1973. But there are no equivalent provisions for cohabitants."
The Report, at [6.6], expressed "the firm conclusion that the power to transfer tenancies at present contained in the Matrimonial Homes Act 1983 should be extended to cohabitants … We therefore recommend accordingly".
void
marriage. It does not, therefore, other than by its absence, provide any assistance on the interpretation of the provisions of paragraphs 2 and 3 of Schedule 7.
v
Secretary of State for the Home Department [2023] AC 255 ("R (O)
v
SSHD"):
"[29] The courts in conducting statutory interpretation are "seeking the meaning of the words which Parliament used": Black-Clawson International Ltdv
Papierwerke Waldhof-Aschaffenburg AG [1975] AC 591, 613 per Lord Reid. More recently, Lord Nicholls of Birkenhead stated: "Statutory interpretation is an exercise which requires the court to identify the meaning borne by the words in question in the particular context": (R
v
Secretary of State for the Environment, Transport and the Regions, Ex p Spath Holme Ltd [2001] 2 AC 349, 396.) Words and passages in a statute derive their meaning from their context. A phrase or passage must be read in the context of the section as a whole and in the wider context of a relevant group of sections. Other provisions in a statute and the statute as a whole may provide the relevant context. They are the words which Parliament has chosen to enact as an expression of the purpose of the legislation and are therefore the primary source by which meaning is ascertained.
…
[31] Statutory interpretation 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.'"
void
marriage. As submitted by Mr Lewis, it is clear that, for example in the MCA 1973, the words "marriage" and "spouse" (in s.11) and "parties to a marriage" (s.21) apply equally when the marriage was
void.
However, it is also clear, as set out in the judgment below at [39]-[42], that a
void
marriage does not have any effect on the parties' status. I have quoted above what Lord Greene said in De Reneville
v
De Reneville at p.111, namely:
"avoid
marriage is one that will be regarded by every court in any case in which the existence of the marriage is in issue as never having taken place and can be so treated by both parties to it without the necessity of any decree annulling it."
To the same effect is what Ormrod J said in Kassim
v
Kassim [1962] P 224 (quoted in the judgment below at [41]) and what the Law Commission said in its 1970 Report, at [3(d)]:
"Avoid
marriage is not really a marriage at all, in that it never came into existence because of a fundamental defect; the marriage is said to be
void
ab initio; no decree of nullity is necessary to make it
void
and parties can take the risk of treating the marriage as
void
without obtaining a decree. But either of the spouses or any person having a sufficient interest in obtaining a decree of nullity may petition for a decree at any time, whether during the lifetime of the spouses or after their death. In effect, the decree is a declaration that there is not and never has been a marriage."
Further, the 1970 Report commented, at [4]:
"To require legal proceedings to be instituted before parties could regard themselves as free from a marriage which was palpably invalid because, for example, one party was already married to another or was under the age of 16, would, in ourview,
add needlessly to the expense to the parties and to the public. Hence, we maintain the
view,
shared by those whom we consulted, that this threefold distinction should be maintained .." (i.e. between
valid,
![]()
void
and
voidable").
validity,
but also determines the ramifications of invalidity (if found)". By this, as referred to above, the judge meant the relief or remedy available under the foreign law: what he termed, at [82], the "primary or consequential matrimonial relief, if any, [which] could be awarded by an Ukrainian court".
validity
of the marriage. This is clearly set out in Dicey, Morris & Collins on the Conflict of Laws 16th Ed., at Rule 74(1), at [17R-00]:
"A marriage is formallyvalid
if (and only if) any one of the following conditions as to the form of celebration is complied with:
(1) the marriage is celebrated in accordance with the form required or (semble) recognised as sufficient by the law of the country in which the marriage was celebrated".
And, at [17-003], which states:
"A marriage celebrated in the form, or according to the rites or ceremonies, required by the law of the country where the marriage takes place, is (as far as formal requisites go)valid."
"There is no rule more firmly established in private international law than that which applies the maxim locus regit actum to the formalities of the marriage, ie that an act is governed by the law of the place where it is done. Whether any particular ceremony constitutes a formallyvalid
marriage depends solely on the law of the country where the ceremony takes place".
I would emphasise the reference to the formalities of the marriage and to a formally
valid
marriage. There is no suggestion in either Dicey or Cheshire that the principle extends any further than this.
v
De Barros (No.1) in which Cotton LJ gave the judgment of the court. I have set out the relevant quote, from p.5, above but I set it out again here:
"The law of a country where a marriage is solemnised must alone decide all questions relating to thevalidity
of the ceremony by which the marriage is alleged to have been constituted."
The important words are "relating to the
validity
of the ceremony" (my emphasis).
v
Dastous in which
Viscount
Dunedin, giving the judgment of the Privy Council, said,
"If there is one question better settled than any other in international law, it is that as regards marriage – putting aside the question of capacity – locus regit actum. If a marriage is good by the laws of the country where it is effected, it is good all the world over, no matter whether the proceeding or ceremony which constituted marriage according to the law of the place would or would not constitute marriage in the country of the domicile of one or other of the spouses. If the so-called marriage is no marriage in the place where it is celebrated, there is no marriage anywhere, although the ceremony or proceeding if conducted in the place of the parties' domicile would be considered a good marriage."
Again, there is no suggestion in either of these decisions that the principle extends any further than the issue of the
validity
of the ceremony itself. In my
view,
it is clear from both that the foreign law determines the effect, and only the effect, of the ceremony for the purposes of determining, again only, the
validity
of the marriage.
"Marriages governed by foreign law or celebrated abroad under English law.
(1) Subject to subsection (3) where, apart from this Act, any matter affecting thevalidity
of a marriage would fall to be determined (in accordance with the rules of private international law) by reference to the law of a country outside England and Wales, nothing in section 11, 12 or 13(1) above shall -
(a) preclude the determination of that matter as aforesaid; or
(b) require the application to the marriage of the grounds or bar there mentioned except so far as applicable in accordance with those rules." (emphasis added)
The relevance of this provision is that it is confined to "the
validity
of a marriage".
view
as to the relevance of the foreign law to the remedy or relief available under English law and, in particular, do not support his conclusion that the relief awarded by this court should reflect the "ramifications of invalidity" under the foreign law. Indeed, it was contrary to what Coleridge J said in Burns
v
Burns, at para [45]:
"Once the foreign law has determined whether it is or is not avalid
marriage, it is for the lex fori to decide its implications and what remedies are available to the petitioning spouse."
And to what I said, also at first instance, in Asaad
v
Kurter when I applied the same principle enunciated in Burns
v
Burns, at [97(c)]:
"… it if for the English court to decide what remedy under English law, if any, is available for the reasons set out in Burnsv
Burns".
"In English law a decree of nullity of marriage is expressed to be retrospective in the case of avoid
marriage but prospective in the case of a
voidable
marriage. It might be argued that a foreign law determining an issue raised in the case should be relevant in determining the form of decree. It is submitted that this should rather be treated as a procedural matter, and so governed by the lex fori. Indeed, any other approach could produce acute difficulties where two or more leges causae existed."
Secondly, in the 1st Supplement to the 16th Ed, there appears the following observation in respect of the approach adopted by the judge in this case, at [19-073]:
"It is submitted that Mostyn J.'s approach should not be followed. It is supported by no previous authority, seems inconsistent with the reasoning in cases such as Burnsv
Burns [2007] EWHC 2492 (Fam), [2008] 1 FLR 813, and the notion of "ramifications" under systems of law which may use concepts quite unlike those in English law would create great uncertainty."
Determination
validly
married for the purposes of determining whether the court's power to make a transfer of tenancy order arose under paragraph 2 or paragraph 3. This was 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.
void
marriage are within the scope of paragraph 3 for the reasons set out below.
void
marriage has no effect on the status of the parties to the ceremony. As Lord Greene MR said in De Reneville
v
De Reneville, at p.111, the parties can treat "the marriage … as never having taken place" and they are not required to obtain "any decree annulling it". The 1970 Report made the same point at paragraph 3(d) and added, at paragraph 4 (both quoted above), that parties should not be required to take legal proceedings because this would "add needlessly to the expense to the parties and to the public". 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.
void
marriage are, as a matter of law generally, in the same position as if there had been no ceremony of marriage at all and, therefore, cohabitants fit with the provisions of the FLA 1996.
void
marriage come within this definition. Secondly, they must have been "living together as if they were a married couple or civil partners". This is an evidential issue which is why I have said that parties to a
void
marriage "can fall" within paragraph 3. That evidential hurdle is established in this case because the parties were clearly living together as a married couple. They are, therefore, prima facie within the scope of paragraph 3.
void
marriage although they fall within the definition of cohabitants. As referred to above, I accept Mr Lewis' submissions that paragraph 2 applies to parties to a
void
marriage. It is impossible to interpret that provision as only applying to
voidable
marriages, as submitted by Mr Hames. However, I do not accept Mr Lewis' submission that paragraphs 2 and 3 are mutually exclusive. There is, in my
view,
nothing to support interpreting these provisions as requiring parties to a
void
marriage to bring nullity proceedings and excluding them from bringing an application pursuant to paragraph 3.
void
marriage. But, there is no reason for it to do so as they are "cohabitants". The only argument, as advanced by Mr Lewis, is that by necessary implication, they must be excluded from paragraph 3 because they are included within paragraph 2. In my
view,
neither the terms of paragraphs 2 and 3 nor the provisions of paragraphs 12 or 13 provide any justification for such an interpretation. Further, I can think of no reason why this should be so. Indeed, 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.
void
marriage or was, as the judge found, "analogous to a domestic non-qualifying ceremony". As I think will be clear from the above, it was unnecessary for the judge to engage with this issue. Once it was clear that the marriage was at least
void,
the court had jurisdiction to make an order under paragraph 3.
validity
of the ceremony" but "determines the ramifications of invalidity (if found) … provided that it is not obviously contrary to justice".
view,
it is clear that 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.
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.
view,
there is no justification for depriving a party of a remedy available under English law simply because there would be no remedy available under the foreign law in the event of proceedings having taken place in that country. The remedies available are a matter and solely a matter of English law.
validity.
I entirely agree with what is said in Dicey, the 1st Supplement, at [19-073], as quoted above. The introduction of "the notion of 'ramifications'" extending beyond the
validity
of the ceremony "would create great uncertainty". For example, how would the judge's approach apply if, as submitted on behalf of the husband, there was a remedy available under the foreign law but which was not available under English law? How could that be presumptively dispositive? As set out in Dicey, at 4-011, "a remedy which is discretionary according to English law cannot be demanded as of right in an English court merely because this is possible according to the lex causae".
view,
again as suggested in Dicey, it would introduce less clarity and certainty. The extent of the relevant "ramifications" is not clear. Additionally, the complexity and cost inherent in enquiring into the remedies available under foreign law were referred to in the submissions. It would require expert evidence. In the present case, there was a single joint expert who was clearly well qualified to give relevant evidence but, nevertheless, three reports were required before the judge had the material which he felt he needed.
view,
the position is as set out in Burns
v
Burns and Asaad
v
Kurter. It is for the English court to determine what remedy is available and this, inevitably, requires the English court to determine, if the marriage is invalid under the foreign law, whether, by reference to English law concepts, the marriage is
void,
voidable
or a non-qualifying ceremony.
void
marriage". If he had stopped there, as in my
view
he should have, his conclusion would have been unimpeachable.
void
marriage; and (ii) the court had jurisdiction to make a transfer of tenancy order under paragraph 3 of Schedule 7.
Conclusion
view the husband's appeal must be dismissed. The Recorder had jurisdiction to make a transfer of tenancy order pursuant to the provisions of paragraph 3 of Schedule 7. As referred to above, the merits of that order are not open to challenge. Further, the time for the enforcement of that order has long since passed. However, I would propose that we grant a further period of 6 weeks from the date of our order to enable the arrangements for the transfer to be effected.
Lord Justice Holroyde:
Sir Andrew McFarlane, President of the Family Division: