Financial Remedies
February 2023
The judgement of Mr Justice Mostyn at an appeal hearing regarding jurisdiction in financial remedy proceedings, where an appeal was raised on the basis that the parties had not entered into a legally valid marriage and the court had failed to consider at first instance whether the marriage between the parties was void, capable of recognition under English law or not any marriage at all before making an order to transfer tenancy.
Summary:
Mostyn J dismissed a 'Husband's' appeal against an order transferring tenancy to the 'Wife' (where the court at first instance had considered that the parties were cohabitants) given that: the marriage is considered void, under Ukrainian law there is no primary or consequential matrimonial relief that would allow for recovery from a void marriage and the invalidity of the marriage generated no right to the grant of a nullity order and therefore the parties did not need to be treated as spouses for the purposes of paragraph 1 of Schedule 7 of Family Law Act 1996.
Background:
The Husband ('H') is an Iranian national and the Wife ('W') is a Ukrainian national; both parties also hold British citizenship. The marriage ceremony took place at the Iranian embassy in Kyiv on 12 December 1997; the marriage was not registered with the Ukrainian State authorities, but the marriage should have been registered (which in this context meant formally marrying according to Ukrainian law in the equivalent of a Registry Office). The parties agreed that they intended to create a valid legal marriage. The parties had two children and moved to the UK in 2001; the Home Office granted W entry clearance as a validly married spouse of H. The parties were granted a Housing Association tenancy in their joint names in 2010.
The parties separated in December 2019. In April 2020, W applied for a non-molestation order and an occupation order. A non-molestation order was made final with no admissions or findings made in relation to H. The court refused to make an occupation order at this stage and confirmed that W could apply to transfer the tenancy. In September 2021, W applied for the transfer of the tenancy into her sole name. The application was made under section 53 and Schedule 7 of Family Law Act 1996.
The Family Law Act 1996 extended the power to order a transfer of tenancy to cohabitants, provided that cohabitation had ceased, whereas an applicant applying to transfer tenancy from their spouse requires a nullity of marriage order. The court determined, following a hearing, that the tenancy should be transferred into W's sole name. Concerns were raised at that hearing regarding the parties' marital status and whether, even if not validly married, the parties were spouses for the purposes of paragraph 2 of Schedule 7 of the Family Law Act 1996. The court at that stage considered that the issue of the validity of the parties' marriage did not need to be tried for the purposes of W's application.
H appealed the court's determination. Permission to appeal was given on the first of 8 grounds (with the other seven being rolled up to be considered at the appeal hearing); the first ground of appeal was that the court was wrong to conclude that he had jurisdiction to make a transfer of tenancy order before having first determined whether: the parties had entered into a marriage which was capable of recognition under English Law, or whether the marriage should be treated as void under English Law or whether the parties had not entered into any marriage at all.
The court needed to determine whether a party to a void marriage could be considered a 'spouse', and in these circumstances to determine whether a nullity of marriage order was required prior to the transfer of any tenancy in these circumstances. The court made directions for evidence from a single joint expert in the form of information from a Ukrainian lawyer.
Decision:
Mostyn J addressed the history to void marriages in English law and helpfully set out the differences between valid, void and voidable marriages and whether they require an order to dissolve or nullify the marriage. Mostyn J indicated that this field of law is complex and confusing and advised that it is unacceptable that the rules are so obscure and impenetrable.
The court then addressed the issue of defective overseas marriages and confirmed the well established principles in private international law that the formal validity of a marriage which is celebrated overseas is governed by the foreign law but that the personal validity is governed by the law of the party's domicile. Mostyn J then indicated that where the foreign law not only determines the validity of the marriage but also determines the ramifications of invalidity, then this should be binding on these courts if it is not obviously contrary to the interests of justice.
The court then addressed the circumstances of this case and went through the evidence provided by the single joint expert regarding the validity of the marriage in Ukraine. The court determined that when deciding whether the marriage is akin to a void or voidable marriage, the closest English law concept to the Ukrainian legal treatment of the ceremony is a void marriage. Mostyn J then confirmed that no primary or consequential matrimonial relief could be awarded by the Ukrainian court and that the ramifications of invalidity of the ceremony are binding on this court.
Mostyn J confirmed that H's appeal should be dismissed due to the following prospects: the ceremony was analogous to a domestic non-qualifying ceremony generating no right to the grant of a nullity order; the parties are therefore not to be treated as spouses for the purposes of paragraph 1 of Schedule 7 of the Family Law Act 1996; and therefore, the power to transfer the tenancy was validly exercised by the court at first instance.
The judgement of His Honour Judge Edward Hess regarding various applications made by a Wife, including an application to set aside and an application to appeal out of time, following a consent order being made in 2021.
Summary:
HHJ Hess considered various applications made by a wife in financial remedy proceedings, which included an application to set aside an order made on 16 March 2021 and an application for permission to appeal out of time. HHJ Hess dismissed the wife's application to set aside the 2021 order and refused permission to appeal out of time, also confirming that permission to appeal on the merits of the case would have also resulted in the court refusing permission to appeal.
Background:
EL ('W') and ML ('H') began cohabiting in 1994, were married in February 2001 and separated in 2017, with decree absolute being granted on 8 March 2019. The marriage produced 3 children.
There were initial proceedings brought by the wife in 2018 and an order was made in January 2019 following a final hearing. Nobody sought to appeal this order, the parties implemented the immediate capital division and H initially complied with his obligation for ongoing payments. H's financial circumstances changed and he was no longer able to comply with the periodical payment obligations to W.
The parties issued cross-applications in 2020 with W seeking to enforce the arrears which H had accrued and H seeking to vary the income provisions of the previous order based on his unemployment. Upon approaching a trial within those proceedings, it was agreed that W's application would be withdrawn and periodical payments would be varied (along with other provisions); no costs were ordered at this stage. The parties were preparing to file a consent order, including completing form D81, when the court queried whether the hearing was still required. The parties informed the court that the parties had reached an agreement and attached the consent order, confirming that D81 forms from both parties would be filed once finalised. DJ Cronshaw quickly approved the consent order and vacated the trial prior to D81 forms being submitted by either party. Given that the consent order had been approved, the parties' legal representatives agreed that there did not seem to be a need to file D81 forms.
W issued a further application in January 2022 for variation/capitalisation of the periodical payments order. Following legal advice from Counsel, W was advised to withdraw her application and W subsequently did so. H sought a costs order at this stage but the court determined that there should be no order for costs. Nobody at this point suggested that the order made in March 2021 should be impeached.
Some time after this, in August 2022, W took advice from Mr Burrows, a solicitor. W's current applications appeared to have been recommended and led by Mr Burrows. W made an application to set aside the order of 16 March 2021 in September 2022 based on various complaints, including that the order was made in breach of FPR 2010 rule 9.26, given that there was an absence of D81 forms. H made an application to strike out W's application on 24 October 2022 on the basis that W's application was an abuse of process and disclosed no reasonable grounds for bringing the application.
The matter came before DJ Ashworth in November 2022 who made various directions but expressed a provisional view that W's application to set aside seemed to actually be an appeal given that setting aside an order is only an appropriate mechanism where no error of court is alleged, which did not seem to be W's case. W issued an application for permission to appeal the March 2021 order.
Decision:
HHJ Hess considered both the application to set aside and the application for permission to appeal, including whether permission to appeal should be given out of time given the 19 month delay in bringing the application.
When considering the application to set aside, HHJ Hess indicated that the bald proposition made by W, in that the court required a D81 form prior to approving a consent order, had merit but that this did not determine whether the order should be set aside or not. The court confirmed that the likely outcome would have been the same (the consent order being approved given the agreed circumstances of the case) and that no legal representative had indicated that there were any issues with the 2021 order, even when proceedings were issued in early 2022. The court also confirmed that nothing further had come to light to affect the order that was made in 2021 and that W's headline complaint regarding the lack of form D81 had been a pointless and expensive legal exercise.
The court also addressed various other issues raised by W and determined that none of the points raised had merit. HHJ Hess then indicated that this case should not have been issued as an application to set aside as W had clearly been asserting that the court had made an error by approving the order in 2021, which should then warrant an application to appeal. The court then dismissed W's application to set aside the order of 16 March 2021 and confirmed that the application was totally without merit.
HHJ Hess then went on to consider whether there was any merit in an application for permission to appeal out of time and, further, even if that permission was given, whether there should be permission to appeal on the merits of the appeal. The court indicated that the only explanation provided for the delay was that W's legal representation up until the point of instructing Mr Burrows had believed the order made in March 2021 to be entirely sensible; this was not considered a compelling reason to grant leave to make a late application.
HHJ Hess then considered the merits of the appeal and the test as set out in FPR 2010 Rule 30.3(7) and whether there is a real prospect of success or some other compelling reason why the appeal should be heard. The court was clear that there was no merit in the appeal, no realistic prospect of success and no compelling reason why the appeal should be heard. HHJ Hess considered that the failure to see a D81 form in this case prior to approving the consent order was a technical imperfection in the consent order process; it was accepted by W that a technical imperfection would not give rise to an appellate overturning the order whatever the circumstances. HHJ Hess dismissed W's applications for permission to appeal and also recorded those applications as totally without merit.
The court will deal with the issue of costs at a further hearing.