Tousi v Gadydukova : Are you transferring your joint tenancy?

Facts

This case focused on two parties married at the Iranian Embassy in Ukraine in 1997. In the decision, the parties were referred to as husband and wife although they never contracted a valid marriage. The husband was Iranian while the wife was Ukrainian. The marriage which produced two children was never registered with the Ukrainian State authorities, despite the wife's attempts to do so. The parties relocated to the UK in 2001 and were jointly granted a tenancy of their family home by a Housing Association in 2010. In December 2019, the parties separated while the Husband lived alone on the property. The wife had previously applied for an occupation order but was refused. She withdrew her application and applied for a transfer of the tenancy under the FLA 1996 in September 2021.

In the first hearing before the Recorder Allen KC, the issue regarding the validity of their marriage arose. The Husband argued that they were validly married, and the transfer order could not take effect until their divorce/nullity was finalised. The Recorder noted an issue regarding their marriage's validity but decided it was unnecessary to determine it. The transfer of tenancy was granted in favour of the wife because the Recorder was empowered to do so under paragraph 2, Schedule 7 of the FLA 1996 if they were “married” and under paragraph 3 if they were “cohabitants”.

However, the problem associated with the decision of the Recorder was that the grant of the transfer order under paragraphs 2 and 3 would arise in different circumstances – while the latter occurs where the parties have ceased to cohabit, the former can only be triggered after an order of divorce, nullity or judicial separation has been made.

Against this backdrop, the husband filed an appeal before the High Court challenging the merits of the transfer order.

Judgement of the high court

In the High Court, a Ukrainian lawyer presented expert testimony before the judge – Mostyn J. The expert stated that since the marriage took place in the Iranian embassy in Ukraine, both spouses were required to be Iranian nationals for the ceremony to be deemed lawful, therefore their marriage was not recognised under Ukrainian law. Based on the old case of Sottomayor v De Barros, ¹ it is settled law that the formal validity of a marriage celebrated overseas (forma) is governed by the lexi loci celebrationis (i.e., the law of a country where a marriage is solemnised). ² Nevertheless, Mostyn J in determining the validity of the marriage held that foreign law should consider “the ramifications of invalidity” if it is “not contrary to justice” and “does not necessarily come to a halt at the question of validity”. ³ In other words, foreign law should not only be considered in determining the validity of marriages but should be extended to the ramifications of invalidity (i.e., the consideration of practical consequences such as financial relief and tenancy rights).

However, since Ukrainian law does not have a concept of non-marriage, Mostyn J while relying on the expert's opinion held that a “void marriage” was the closest English Law concept to the Ukrainian legal treatment of the ceremony between the parties. ⁴ It was concluded that the spouses had gone through a “non-qualifying ceremony” and were not spouses under paragraph 1 of Schedule 7. Accordingly, the husband's appeal was dismissed. ⁵

Still dissatisfied, the husband appealed to the Court of Appeal.

Issues for determination

In the Court of Appeal, the husband's grounds of appeal (as reproduced in paragraph 32) were based on the following three issues:

Their marital status needed to be determined because the dates on which the court could make an order – and on which it took effect – were different under paragraphs 2 and 3 of Schedule 7 and depended on their status;

Overall, the husband sought that a nullity order should have been made before the transfer of tenancy order was granted. He contended that the approach adopted amounted to “putting the cart before the horse”. On the part of the wife, she conceded that their marital status needed to be determined for the purposes of deciding whether paragraph 2 or paragraph 3 of the FLA 1996 was applicable. It was therefore submitted in her favour – through her lawyer Mr Hames – that if they were not married the Court had the power to make the transfer order under the FLA. ⁶

Conversely, the husband's lawyer (Mr. Lewis) contended that the High Court judge wrongly applied the rule in Sottomayor v De Barros because the relief available (or not available), ought to have been determined by the law governing the dissolution and annulment of marriages, not the law governing the formation of marriages. It was further argued that English family law applies the lex fori – the law of the country in which the dispute is heard – and there was no reason to extend the exception applicable to the validity of foreign marriages to grant a remedy. The husband's lawyer also advanced that a party to a void marriage is not a “cohabitant” within the scope of paragraph 3 and should have been treated under paragraph 2. Therefore, the Appeal Court was urged to allow matrimonial reliefs in cases where parties have lived together on the assumption that they were married. ⁷

Judgement of the court of appeal

In the Court of Appeal, Moylan LJ while addressing the validity of the parties’ marriage held that a void marriage influences the parties’ status. Moylan's decision was based on Lord Greene's view in De Reneville v De Reneville where it was asserted that:

“A void 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”. ⁸

It was also held that the parties had contracted a void marriage which was under the scope of Schedule 7, paragraph 3 and not paragraph 2 of the FLA 1996 (this is because they were “cohabitants” and paragraph 3 applies to cohabitants while paragraph 2 applies to persons in a void marriage who are not cohabitants). Hence, they were not required to take legal proceedings because this would “add needlessly to their expense and the public”. ¹⁵ In this case, it was decided that the parties fell within the meaning of “cohabitants” under section 62 (1) of the FLA 1996. Therefore, Moylan LJ concluded that whether the marriage was “void” or analogous to a “domestic non-qualifying ceremony” was immaterial because once a marriage is void, the court is empowered to make a transfer order under paragraph 3 and parties need not begin a nullity proceeding to access such justice. ¹⁶

Accordingly, the husband's appeal was dismissed because the marriage was void and the Recorder's transfer of tenancy order was affirmed because the court had the jurisdiction to grant such transfer under schedule 7, paragraph 3. The court also granted six additional weeks to effectuate the transfer since the date of the order had elapsed due to the long appeals. ¹⁷

Implications

An interesting point of observation, in this case, is that only the formal validity of a marriage is determined by the lex loci celebrationis – the law of the place in which the marriage was celebrated – and it does not extend to “ramifications of invalidity”. ¹⁸ Therefore, there is a clear disparity between the law governing the “formation of marriages” and the law governing the “dissolution and annulment” of marriages. Essentially, as a matter of juridical distinction, the remedies applicable to each of these circumstances cannot be granted interchangeably.

Nevertheless, it is worth noting that the rule in Sottomayor v De Barros could give rise to complexities and potential conflicts between different legal systems, especially in cases involving international parties and where the ramifications of invalidity have significant personal and financial consequences like in Tousi's case. Thus, Mostyn J's approach attempted to consider the practical ramifications of invalidity by ensuring that justice is served beyond the mere question of validity. However, this approach is criticised in Dicey where it is argued 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 Burns v Burns, ¹⁹ and the notion of “ramifications” under systems of law which may use concepts quite unlike those in English law would create great uncertainty’. ²⁰

Ultimately, this case note argues that to maintain clear and consistent legal principles in England and Wales, the rule in Sottomayor v De Barros is preferable. As Vorri puts it ‘when considering whether the law should be extended as Mostyn J had proposed, it should be considered whether it would achieve more or less clarity and certainty. Mostyn J's approach, even in the broadness of the term “ramifications” would not have achieved more certainty and would have increased the cost of determining such applications significantly’. ²¹

Furthermore, in light of the precedent created by Tousi's case, parties in a void marriage are no longer required to apply for a nullity decree if they meet the legal criteria of ‘cohabitants’. ²² Adopting the rule in R (O) v SSHD, ‘an objective assessment of the meaning’ of the provisions of Schedule 7, paragraph 3 FLA 1996 leads to the clear conclusion that parties to a void marriage can be ‘cohabitants’ for purposes of paragraph 3, schedule 7. ²³ This means that individuals who have gone through a marriage ceremony that is later deemed void can still be recognised as cohabitants for the purposes of certain legal rights and remedies. If a “void” marriage occurs, parties may benefit from expedited access to justice. In that case, all that is required for the court to issue an order of transfer of tenancy is for the parties to stop living together. However, it may sometimes be difficult to pinpoint a definitive end to cohabitation especially if couples experience periods of separation and reconciliation. Fundamentally, the Court of Appeal's ruling in Tousi remains relevant for situations where parties have lived together and shared a tenancy, but their marriage is later found to be void – due to lack of proper registration or other legal issues. The decision sets a precedent for future cases involving void marriages and tenancy rights.

Additionally, it can be inferred from this case that parties before an English court cannot be denied remedies available under English Law merely because such remedy in a similar event in the contracting country would not have been available to them. In the same vein, remedies that might be available under foreign law would be irrelevant to the issue of formal validity. This is because a remedy that is “discretionary” under English law cannot be demanded “as of right” in an English court merely because it is possible according to the foreign law. ²⁴

Also, it is self-evident from this case that any changes regarding the validity of marriages and transfer of a joint tenancy owned by spouses would have to occur through a legislative process and not a legal action. Nonetheless, if the law should be expanded as Mostyn J had contemplated – i.e., for foreign law to be extended to “ramifications of invalidity” – then abundant caution needs to be taken to determine if it would achieve more justice or stifle the process of transfer of tenancy. Nevertheless, until such legislative steps are taken, the Court of Appeal's decision remains incontrovertibly apt for the time being. It also confirms that the rule in Sottomayor v De Barros is still good law; ²⁵ and should be confined to the question of formal validity (or invalidity) of the marriage and not be extended to the ‘ramifications of invalidity’. ²⁶ In sum, the case provides clarity on the application of Schedule 7 of the FLA 1996 to parties in non-marriage situations and their eligibility for tenancy transfers.

In terms of the housing law in England and Wales, Tousi's case acknowledges the lived experiences of individuals in void marriages and ensures they are not deprived of legal remedies simply because their marriage is not ‘formally’ valid. It also underscores that parties in a void marriage can request a transfer of tenancy under Schedule 7 of the FLA 1996. Even if parties are not legally married, they may have housing and tenancy rights. Accordingly, the decision reaffirms the scope of tenancy transfers and sheds light on the tenancy transfer rights of parties in void marriages under English and Welsh housing law. Thus, reiterating that law can respond to the practical needs and realities of modern relationships by providing greater protection and flexibility for individuals. Beyond housing, the decision may affect property rights and tenancy arrangements in other wider contexts. Essentially, parties in void marriages could successfully seek equitable relief if property division is desired.