The question of whether a marriage entered into overseas will be recognised in England and Wales continues to generate complex litigation. The decision in the case of Tousi v Gaydukova [2023] has provided important clarification on how the English courts approach foreign ceremonies of marriage, particularly where the marriage is later found to be invalid under foreign law.

Background to Tousi v Gaydukova

In Tousi v Gaydukova, the parties “married” at the Iranian Embassy in Kyiv in December 1997. The husband was Iranian and the wife was Ukrainian. Although the marriage ceremony complied with Iranian requirements, it was never registered with the Ukrainian authorities as required under Ukrainian law.

The couple later moved to England, lived together for many years, had children, and were granted a joint tenancy of housing association property. When the relationship broke down, the “wife” applied for a transfer of the tenancy under Schedule 7 of the Family Law Act 1996. This Act allows the Court to transfer tenancies between married couples, civil partners and cohabitees. The husband defended the wife’s application, arguing that they were married and that the Court did not have the authority to transfer the tenancy before a divorce had first been obtained.

The “wife” argued that they had no marriage because their marriage was not recognised in the country in which they got married i.e. Ukraine. This is despite the fact that the couple had relied upon their marriage when applying for a visa to the UK and the “wife” had applied for a spousal visa.

The question that the Court had to answer was how should English law treat a foreign marriage that is invalid under the law of the country where it took place?

Formal validity of foreign marriages: lex loci celebrationis

English law has long applied the principle of lex loci celebrationis: i.e. the formal validity of a marriage is governed by the laws of the country where the ceremony took place.

In this case expert evidence was obtained from an expert in Ukrainian law. The expert was asked to advise on whether the couple’s marriage was valid in Ukraine and the legal ramifications in Ukraine if the marriage was not valid. The expert reported that the couple’s ceremony did not create a valid marriage under Ukrainian law. This meant that it could not be formally valid under English private international law either. The expert also advised that the “wife” had no legal remedy in Ukraine because the couple were not married.

Does foreign law determine English remedies?

No, it does not. One of the most significant aspects of the Court of Appeal decision was its rejection of the argument that foreign law also governs the legal ramifications of an invalid marriage in England.

The judge in the court below had suggested that if the ceremony was not recognised under Ukrainian law and therefore the “wife” had no legal rights there, that position should carry through into English law. The Court of Appeal firmly disagreed. It held that:

• Foreign law determines only the formal validity of a marriage
• English law determines remedies and consequences in England and Wales

Whether Ukrainian law would have granted relief to the “wife” was irrelevant. Once the matter came before an English court, English law applied.

As indicated above, the Family Law Act 1996 allows a Court to transfer tenancies between cohabitees.  In this case the “wife” was treated as a cohabitee, so the Court was able to transfer the tenancy to her in that capacity.

Conclusion

Tousi v Gaydukova reinforces a principled and structured approach to foreign marriages. The law of the country where the ceremony occurred determines whether a marriage exists. Once that question is answered, however, English law takes over. Remedies are determined by statute and domestic policy, not by the reach of foreign family law.

This decision is critical for couples who assume that a religious or embassy ceremony will automatically be recognised in England and Wales. English Courts will look closely at foreign legal requirements, including compulsory registration.

For couples with an international dimension to their relationship, early legal advice is essential. Assumptions about marital status can unravel after many years, with life‑changing consequences.

Contact us

If you need any more advice and guidance on any of the above, do get in touch with Saika Alam. Saika co-heads the family law department. She is a well-respected family and divorce lawyer based in St James’s, London. Known for her personal and pragmatic approach, Saika represents her clients on all aspects of their family relationships from cohabitation and marriage to separation and divorce and everything in between, whether that relates to financial matters or children’s issues. You can contact Saika on [email protected] or 020 78510110.