The “husband”, an Iranian national, and the “wife”, a Ukrainian national, took part in a marriage ceremony conducted in the Iranian embassy in the Ukraine. Although the wife made subsequent attempts to register the marriage for the purposes of Ukrainian law, the husband was uninterested in conducting the required civil service in the equivalent of a registry office. The parties’ intention had been to create a valid marriage and when the husband took up further education in the United Kingdom the wife was granted entry clearance as his spouse. The parties were also granted a tenancy, in joint names, by a housing association. Upon separation the mother moved out of the property with the parties’ two children and, having been refused permission to lodge a divorce petition without a marriage certificate, applied pursuant to section 53 of, and Schedule 7 to, the Family Law Act 1996 for the tenancy to be transferred into her sole name. Paras 2 and 12 of the Schedule allowed for the transfer of the tenancy between spouses to be made only on or after a conditional divorce (decree nisi) or nullity order, although para 3 of Schedule 7 also permitted the court to make an order where cohabitants ceased to cohabit. The husband appealed against the decision to transfer the tenancy to the wife submitting that, even if the parties were not validly married, he and the wife were to be considered spouses for the purposes of the Schedule and so in making the transfer order before decree nisi the court had acted without jurisdiction. The central issue for the court was therefore whether the parties had entered into (i) a marriage capable of recognition in this jurisdiction; (ii) a marriage which ought to be treated as void in this jurisdiction; or (ii) no marriage at all.
On the husband’s appeal—
Held, appeal dismissed. The well established principle concerning the validity of foreign marriages did not confirm precisely what the remit of the “foreign determination” was, such that the binding determination by the foreign law did not necessarily come to a halt at the question of the validity of the ceremony. If the foreign law not only determined the question of validity, but also determined the ramifications of invalidity (if found) then that corollary ought also to be binding domestically, provided that it was not obviously contrary to justice. Had the parties, for example, disregarded the marriage laws of a foreign country when devising their marriage ceremony to such an extent that the foreign law would have treated the ceremony as non-existent, with no entitlement to make a claim in court for any relief, then that too was a determination of a question “relating to” the validity of the ceremony which ought to be binding here. Such a determination corresponded to the domestic concept of a non-qualifying ceremony where the appropriate remedy was the dismissal of the application for a nullity order. Therefore, the “questions relating to the validity of the ceremony by which the marriage was alleged to have been constituted” which fell to be determined by the foreign law encompassed both (i) the formal validity or invalidity of the ceremony and (ii) the ramifications of that finding under the foreign law, and, where it was not contrary to justice, the relief awarded here ought to reflect those ramifications. Expert evidence in such cases was therefore required to address both of those elements. In the present case, the evidence of the joint expert on Ukrainian law made clear that the parties’ “marriage” was invalid and incapable of being later ratified and also made extremely clear that the ceremony would not be afforded any recognition in any shape or form in the Ukraine, nor did it convey any rights on either party, with the consequence that neither party could bring any form of case to court for recognition of the “marriage” or for other consequential matrimonial relief. Accordingly, the parties’ marriage ceremony was analogous to a domestic non-qualifying ceremony generating no right to the grant of a nullity order. It followed that the parties were not to be treated as spouses for the purposes of paragraph 1 of Schedule 7 to the Family Law Act 1996, with the consequence that the power to transfer the tenancy had been validly exercised by the first instance judge (paras 65, 68–70, 73, 81, 82–85, 86).
Summary of current “complex and confusing” principles governing marriage nullity in domestic cases (paras 61–62).
Suggestions to higher authorities on how potentially to achieve greater clarity and simplicity in future (paras 88–91).
Max Lewis and William Horwood (both acting pro bono) (instructed by Advocate) for the husband.
Katherine Gittins (instructed by Caveat Solicitors Ltd) for the wife.