Tousi v Gaydukova [2024] EWCA Civ 203
This case concerned individuals who entered into marriage at the Iranian embassy in Ukraine in 1997, but it was later confirmed that this did not result in a valid marriage. The wife sought a transfer of tenancy following their separation, leading to a dispute over whether the court could transfer the tenancy without first determining the validity of the marriage.
After multiple court proceedings, including an appeal, it was concluded that the transfer of tenancy was valid under paragraph 3 of Schedule 7 of the Family Law Act 1996, regardless of the marriage’s validity. The husband appealed, arguing that Ukrainian law determined both the entitlement to a nullity order and the classification as spouses under Schedule 7.
The key issue at hand was whether the term “cohabitants” in paragraph 3 of Schedule 7 of the Family Law Act 1996 encompasses parties to a void marriage or if they fall within the scope of paragraph 2, which relates to spouses or former spouses.
The court needed to determine the validity of the marriage to decide if the transfer order could be made under paragraphs 2 or 3 of the Act. It was found that parties in a void marriage could still be considered cohabitants under Section 62(1) if they lived together as a married couple. The validity of the marriage is determined by the law of the place where it was celebrated. The court dismissed the husband’s appeal, confirming the jurisdiction to order the tenancy transfer under paragraph 3 of Schedule 7.
This case clarifies that the validity of marriage is determined by the law where it occurred and that parties in a void marriage can still be considered cohabitants, broadening the scope for future family cases with similar circumstances.
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