https://orcid.org/0000-0003-1561-5457
Tousi v Gaydukova [2023] EWHC 404 (Fam) concerned an appeal by the ‘Husband’ (‘H’) against an order transferring tenancy to the ‘Wife’ (‘W’) on the basis that the parties had not entered into a legally valid marriage. The ceremony between the Iranian H and Ukrainian W took place at the Iranian Embassy in Kyiv on 12 December 1997 but the parties did not register the marriage with the state authorities in Ukraine, despite being aware that this was a requirement for the marriage to be legally valid.
In 2000, the parties moved to the UK, with the Home Office granting entry clearance to W as the spouse of H. In 2010, they were granted a tenancy in joint names, but separated in December 2019. In April 2020, the wife applied for non-molestation and occupation orders. The court granted a non-molestation order ex parte but refused an occupation order and observed that W could apply for the transfer of the tenancy.
W made the application under section 53 and Schedule 7 of the Family Law Act (FLA) 1996 which empowers the court to transfer a tenancy to cohabitants, provided that the cohabitation has ceased; a spouse applying for a tenancy transfer requires a nullity of marriage order. The court granted a transfer of tenancy into W’s sole name. Concerns were raised at that hearing regarding the parties’ marital status and whether, if not validly married, the parties were spouses according to para 2 of Schedule 7 of the FLA 1996. The court determined that the validity of the marriage did not need to be established for the purposes of W’s application.
H appealed on the ground that the validity of the parties’ marriage should be determined before granting a transfer of tenancy order: was the marriage capable of being legally recognised under English Law; was it a void marriage; or was it, in fact, not a marriage at all?
In his judgment, Mostyn J described the differences between valid, void, and voidable marriage. If the parties failed to comply with the formalities required by law, their marriage was invalid. The categories of void and voidable marriages are recognised under the Nullity of Marriage Act 1971 (now s. 11 of the MCA 1973) but the third category of ‘non-marriage’ is a judicial creation which is ‘arguably in direct conflict with that statute [s. 11 of the MCA 1973]’ (para 36). The category of ‘non-marriage’ has the effect of denying financial relief to couples under the MCA 1973.
Mostyn J evaluated the case law in which the judges created the category of ‘non-marriage’ that is described as ‘non-qualifying ceremony’ (NQC) by the Court of Appeal in AG v Akhter and Others [2020] EWCA Civ 122. In highlighting the impact of the category of the NQC on the legal recognition of foreign marriages under English law, he held that foreign law determines the validity of a ceremony of marriage as well as the ramifications of the validity or invalidity of the ceremony.
To further elaborate the above point, Mostyn J examined the judgment in Hudson v Leigh [2009] EWHC 1306 (Fam). As a family lawyer, he successfully defended Mr Leigh against the claim of Ms Hudson that their wedding ceremony in Cape Town must be recognised under English law. The parties participated in a Christian ceremony of marriage which they did not intend to be legally binding due to Mr Leigh’s being an atheist Jew who did not want to be married in a Christian ceremony. The parties agreed that the ceremony should have the appearance of a marriage ceremony, but they would conduct a legally binding civil marriage at a register office in London some months later. Before the civil ceremony could take place, however, their relationship broke down. Mr Leigh filed a petition for a declaration that the marriage ceremony in South Africa had no legal effect. Ms Hudson counter claimed that the marriage was valid or alternatively claimed that the marriage was void for non-compliance with the formal requirements of South African law. The issue before Bodey J was whether the category of a ‘non-marriage’ exists in English law. Mr Nicholas Mostyn QC succeeded in persuading Bodey J that such a category existed in English law notwithstanding section 58(5) of the Family Law Act 1986, which prohibits a court from declaring that a marriage was at its inception void. The opposing counsel, Mr Le Grice QC unsuccessfully argued that such category did not exist under statutory law and that the cases that recognise the category of non-marriage were wrongly decided.
In his capacity as a judge, Mostyn J disagrees with the judgment in Hudson and finds it ‘extraordinary’ that the English court refused to grant a decree of nullity to Miss Hudson after finding that she was entitled to such a decree under South African law. He observed:
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.
On the facts in Tousi, Mostyn J found that under Ukrainian law the marriage ceremony of the parties did not generate any right to grant a nullity order under English law. Therefore, the parties were not spouses under the FLA 1996 and the court correctly granted the transfer of tenancy order to the wife.
In the postscript of the judgment, Mostyn J found persuasive the arguments of Mr Le Grice, expressed in an article (Grice Citation2013), which argued that if one party to the ceremony of marriage believes that it creates a status of marriage, then this belief is sufficient to fulfil the definition of a void marriage. In this way, Mr Le Grice contended, the category of non-marriage will be limited to
fictional marriages on stage and screen and ceremonies which everyone knew to be a game. The word void would be reunited with its dictionary definition, status could be clarified by decree, meritorious claims for financial relief permitted and discrimination avoided
The issue of the legal recognition of religious and humanist marriages seemed to have been settled in AG v Akhter and Others [2020] EWCA Civ 122 wherein the judges of the Court of Appeal coined the term ‘NQC’ to distinguish legally recognised marriages from legally non-recognised marriages (previously described as ‘non-marriages’). In doing so, they elevated the status of legal formalities (especially of the ceremony) to become the test for legal recognition of a marriage. In Tousi, Mostyn J has questioned the validity of the category of the NQC because of its direct conflict with the statutory laws. He proposed to limit the category of the NQC to ‘fictional marriages’ in films and dramas which are intended not to create any legal rights. This judgment shows that the tension between the formalities of marriage and its substance (intention of the parties) will continue to define the future developments in the case law on the NQC.
Disclosure statement
No potential conflict of interest was reported by the author.
Reference
- Grice, V.L., 2013. A Critique of Non-Marriage. Family Law, 43 (10), 1278–1285.