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This article truly demonstrates how interconnected our world has become and that Ukrainian legislation may influence on the outcome of the cases and proceedings before the foreign courts of the highest instance.
There is a publicly and openly available judgement of the High Court of Justice rendered by Mr Justice Mostyn in February 2023, available at the following link:
https://www.bailii.org/ew/cases/EWHC/Fam/2023/404.html.
The subject of the dispute was a tenancy held by both parties jointly, which has been transferred to the respondent solely by the UK court order.
The appellant is an Iranian national, while respondent is a Ukrainian, both holding British citizenship. The core issue of the appeal before the High Court of Justice became the validity of their marriage ceremony that had took place back in 1997 at the Iranian Embassy in Kyiv.
The High Court of Justice appointed a single joint expert to provide a range of the answers regarding applicable Ukrainian law to determine the legal effect of the ceremony in 1997 and whether such act led to the existence of the marriage between parties or not.
His Honour Mr Justice Mostyn considered the case with the utmost attentiveness to details and relied on all aspects of the applicable UK laws regarding the formation and annulment of marriages. Significantly, the High Court of Justice chose to apply Ukrainian family legislation while addressing the issues of the marriage ceremony performed by the parties in Kyiv in the nineties.
Mr Justice Mostyn specifically noted “the admirably clear evidence of the SJE” and that “In contrast to other cases where the expert evidence is ambiguous, in this case it could not be clearer”.
The High Court of Justice while deciding the appeal made a conclusion that “it is clear that under its proper law the 1997 marriage in the Iranian embassy in Kyiv is invalid ab initio, and incapable of being later ratified. When choosing between the alternative of a void and voidable marriage the closest English law concept to the Ukrainian legal treatment of this ceremony is a void marriage.”
Following that His Honour Mr Justice Mostyn dismissed the appeal of the applicant on the following footing:
i) that the 1997 ceremony was analogous to a domestic non-qualifying ceremony generating no right to the grant of a nullity order;
ii) the parties are thus not to be treated as spouses for the purposes of Paragraph 1 of Schedule 7 to the Family Law Act 1996; and
iii) the power to transfer the tenancy was validly exercised by the Recorder.
In fact, the SJE mentioned in the judgement is Aminat Suleymanova, Managing Partner at AGA Partners, internationally recognized expert in Ukrainian family law. She relied on her more than twenty-year experience and unique expertise in dealing with the international matters to deliver an exquisite, specific, concise, and clear report while addressing numerous questions of the High Court.
This case shows the importance of the consideration of the case from all possible aspects and confirms the importance of the expert’s role in the proceedings, including the ones abroad.
Author: Oleksandr Gubin, counsel, attorney-at-law at AGA Partners.