Court of Appeal success in the case of Tousi v Gaydukova [2024] EWCA Civ 203

06/03/2024

Katherine Gittins and Chris Hames KC of 4PB instructed by Caveat Solicitors have been successful in representing the Respondent in the appeal brought in the case of Tousi v Gaydukova [2024] EWCA Civ 203.

This is the second appeal from a transfer of tenancy order made by Recorder Allen KC on 25 March 2022. The first appeal was heard by Mr Justice Mostyn who undertook an extensive analysis of the law relating to nullity of a marriage and the relevance of foreign law to the remedy available under English law in respect of an invalid overseas ceremony. At this hearing, Mr Justice Mostyn determined the question relating to the validity of a ceremony encompassed the ramifications under foreign law which he stated were “presumptively binding”.  It was determined the marriage was a non-marriage, and so the transfer of tenancy could take effect.

The second appeal has been decided with an additional argument raised by the Respondent: that the parties were not validly married and therefore were cohabitants for the purposes of Schedule 7 Family Law Act 1996. In considering the case law, the Court determined the marriage was a void marriage, and given it had thus never taken place and parties are not required to obtain a nullity order, the parties could fall into the definition of cohabitants and thus the transfer of tenancy could be made.

It is interesting to note that the Court disagreed with Mr Justice Mostyn’s judgment that the marriage was a non-marriage and have confirmed:

“In my view, the position is as set out in Burns v Burns and Asaad v Kurter. It is for the English court to determine what remedy is available and this, inevitably, requires the English court to determine, if the marriage is invalid under the foreign law, whether, by reference to English law concepts, the marriage is void, voidable or a non-qualifying ceremony.”

https://caselaw.nationalarchives.gov.uk/ewca/civ/2024/203