One we should have spotted sooner…
In Tousi v Gaydukova  EWHC 404 (Fam), Mr Tousi was an Iranian national and Ms Gaydukova a Ukrainian: both had UK citizenship . They were married at the Iranian Embassy in Kyiv in 1997 but the marriage was not “registered” with the Ukrainian state authorities. According to Ms Gaydukova, they were well aware of the need to register and on three occasions she attempted to do so, but Mr Tousi refused to cooperate . Mr Tousi argued that “he chose not to register the marriage because he saw it as a celebratory social event in which he was uninterested” .
The couple moved from Ukraine to the UK in 2001 and in 2010 a Housing Association gave them the tenancy in their joint names of a property in Notting Hill [8&9]. They separated in 2019 .
In September 2021, Ms Gaydukova applied for the transfer of tenancy of the former matrimonial home into her sole name. The application was made under s. 53 and Schedule 7, Family Law Act 1996, which allow a transfer of a protected or secure tenancy to be made on or after (but not before) a conditional divorce or nullity order or a judicial separation order – but in the case of a divorce or nullity order, the date on which the transfer takes effect cannot be earlier than the date on which the order is made final [15&16]. No decree nisi or conditional order of nullity had been made in their case . Mr Tousi opposed the application .
On 25 March 2022, Mr Recorder Allen KC granted a transfer of tenancy to Ms Gaydukova and ordered that Mr Tousi could continue to occupy the property for 14 days from the date of service of the order but had to vacate by 4 April 2022 . On 29 March 2022, however, he stayed that order by consent because of concerns about the parties’ marital status raised after the conclusion of the hearing:
“Specifically, the husband had pointed out that even if not validly married he and the wife were spouses for the purposes of para 2 and so in making the order before a decree nisi (as it was still called on that day) the court acted without jurisdiction. The court gave directions for the parties to file statements in relation to the marriage ceremony. On 14 April 2022 Recorder Allen KC gave a supplemental judgment and lifted the stay of the order of 25 March 2022. He did not consider that there was a need to try the issue of the validity of the parties’ marriage for the purposes of the application before him. He ordered the husband to vacate the property by 12 May 2022 and extended the time for seeking permission to appeal to the same date” .
In brief, Mr Tousi’s case was that the ceremony in Ukraine was a genuine attempt to enter into a valid marriage and that in Ukraine, a marriage in a diplomatic mission was capable of giving rise to a valid marriage if both spouses were citizens of the state of the mission. Ms Gaydukova argued that the marriage was a “non-marriage” which could not give rise to a nullity order and, therefore, that the order of tenancy was correctly made.
Mostyn J noted that the ceremony at the Iranian embassy had not been a valid marriage because there was a requirement for both parties to be Iranian nationals. The parties had therefore been required to register their marriage with the Ukrainian authorities – which they had not done . He therefore held that the parties were not to be treated as spouses for the purpose of Schedule 7 to the Family Law Act 1996 and that the power to transfer the tenancy had been executed correctly . Appeal dismissed .
Comment: The interest of this judgment lies in Mostyn J’s discussion of the formation of marriage [30-34], the taxonomy of invalidity [35-37], the nature of and grounds for a void marriage [38-47] and nullity and public policy [48-51] – but principally in his Postscript:
“90. These cases are not rare and remote outliers. There are many religious (usually Islamic) marriages solemnised in private dwellings in gross disregard of our laws (or the host country’s laws) concerning the due form for such ceremonies. According to the judges these ceremonies are so irregular that they amount to non-qualifying ceremonies, a feature of which is that no primary or ancillary matrimonial relief may be awarded. Yet, the ceremony is a valid marriage in the minds of the parties and probably would be recognised as valid by the entire Islamic world. In my opinion, the situation is a disreputable mess and urgently needs to be definitively clarified both substantively and procedurally.
91. This can only be achieved comprehensively … by the Supreme Court as the Court of Appeal and all lower courts are bound by Akhter [HM Attorney General v Akhter & Ors  EWCA Civ 122] in relation to domestic ceremonies.” [emphasis added].