Key Facts
- •The appeal concerns the jurisdiction of the court to transfer a tenancy under s.53 and Schedule 7 of the Family Law Act 1996.
- •The parties went through a marriage ceremony in Ukraine in 1997, but its validity under English law was disputed.
- •The wife applied for a transfer of the tenancy of the family home.
- •The Recorder granted the transfer order without determining the validity of the marriage.
- •Expert evidence showed the Ukrainian ceremony did not create a valid marriage.
- •The appeal questioned whether “cohabitants” in Schedule 7, paragraph 3, includes parties to a void marriage.
Legal Principles
The formal validity of a marriage celebrated overseas is governed by the lex loci celebrationis (law of the place of celebration).
Sottomayor v De Barros (No.1) (1877) 3 PD 1 (CA); Berthiaume v Dastous [1930] AC 79 (PC)
A void marriage has no effect on the parties’ status; they can treat it as never having taken place without a decree annulling it.
De Reneville v De Reneville [1948] P 100; Kassim v Kassim [1962] P 224; Law Commission’s 1970 Report on Nullity of Marriage
The lex fori (law of the forum) decides the implications of a foreign marriage's validity and available remedies.
Burns v Burns [2008] 1 FLR 813; Asaad v Kurter [2014] 2 FLR 833
Statutory interpretation involves an objective assessment of what a reasonable legislature would convey.
Regina (O) v Secretary of State for the Home Department [2023] AC 255
Cohabitants are defined as two persons who are neither married nor civil partners but are living together as if they were.
Family Law Act 1996, s.62(1)
Outcomes
The husband’s appeal was dismissed.
The Recorder had jurisdiction to make a transfer of tenancy order under paragraph 3 of Schedule 7 to the FLA 1996 because the parties were cohabitants, even though their marriage was void.
Parties to a void marriage can be considered cohabitants under paragraph 3 of Schedule 7.
A void marriage doesn't affect the parties' status; they are legally in the same position as unmarried people living together. Paragraphs 2 and 3 of Schedule 7 are not mutually exclusive.
The judge's approach of considering the ramifications of invalidity under foreign law to determine English remedies was rejected.
The lex loci celebrationis only determines the formal validity of the marriage, not the remedies available under English law. The judge’s approach lacked clarity and certainty.