Neutral Citation Number: [2014] EWCA Civ 571
Case No. B5/2012/3007 
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON CIVIL JUSTICE CENTRE
(HER HONOUR JUDGE BAUCHER)

Royal Courts of Justice 
Strand
London, WC2A 2LL 

Date: Monday, 7 April 2014
 
B e f o r e: 

LORD JUSTICE VOS

LADY JUSTICE GLOSTER 

LORD JUSTICE MOSES 
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Between: 
NORTHUMBERLAND & DURHAM PROPERTY TRUST LTD
Appellant

v 

OUAHA
Respondent 
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DAR Transcript of the Stenograph Notes of  
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Mr P Staddon (instructed by Prince Evans Solicitors) appeared on behalf of the Appellant
Miss M Carrs‑Frisk, QC and Mr M Palfrey (instructed by Seddons Solicitors) appeared on behalf of the Respondent 
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J U D G M E N T
LORD JUSTICE VOS

1.	The issue in this appeal is simply whether the Appellant, Miss Latisah Ouaha, was properly to be regarded as “the surviving spouse" of Mr Khawan Al‑Faisal (“Mr Al‑Faisal”) when he died on 19 November 2010.  
2.	HHJ Baucher decided that the Appellant was not Mr Al‑Faisal's surviving spouse within the meaning of that phrase in paragraph 2(1) of Schedule 1 to the Rent Act 1977 (“paragraph 2(1)”) so that she did not become a statutory tenant after his death, and ordered that the Appellant should deliver up possession of the property at Flat 15, 1 Royal Avenue House, London, SW3 4QD (the “property”).  In essence, HHJ Baucher found that to be the surviving spouse, the Appellant would have had to have been in a marriage recognised by the Marriage Acts 1949 to 1986.  
3.	The Appellant's central submission is that the judge was wrong to decide that the term “the surviving spouse” in paragraph 2(1) did not include the Appellant because she had gone through a Sharia ceremony of marriage with Mr Al‑Faisal in England in 1987.  In essence, Mr Paul Staddon, counsel for the Appellant, has submitted that the words “the surviving spouse” should be given a wide meaning.  
4.	The Appellant sought to raise two additional arguments that we decided in the course of the hearing were not open to him.  First he sought to contend that the term “the surviving spouse” should be interpreted as including a person affected by the common law presumption of marriage arising from long cohabitation and repute.  See Chief Adjudication Officer v Bath [2001] FLR 8 at paragraphs 8 to 9 per Robert Walker LJ, with whom Schiemann LJ agreed.  Mr Staddon very properly accepted that such an argument was not in his grounds of appeal and was not argued below.  I do not think, therefore, that such an argument was open to him before this court.  
5.	Secondly, Mr Staddon sought to argue that a marriage conducted overseas would be sufficient to render the Appellant the surviving spouse for the purposes of paragraph 2(1).  He relied on the contention that a marriage contract certified by the Moroccan first instance court dated to January 1993 amounted to a valid foreign marriage.  This argument too is not, in my judgment, open to the Appellant because the certificate itself, which was before the judge below, does not purport to evidence a marriage, but just the continuation of an existing marriage.  Moreover, the Appellant did not contend before the Court below that she had been married in Morocco in 1993, only that her previous marriage in 1987 in London had been evidenced by it.  
6.	It seems to me that the question of whether a spouse under a valid foreign marriage might or might not constitute the surviving spouse for the purposes of paragraph 2(1) could raise some difficult points of law that would require full argument and maybe evidence before they could be determined.  That did not happen in this case.  I intend, therefore, to stick to the arguments advanced by the Appellant in her Appellant's notice.  
7.	Before turning to these questions, I should briefly set out some of the relevant chronological background.  On 10 February 1967, the Appellant was born.  She was and is a Moroccan national.  On 1 August 1980, the lease of the property was assigned to Mr Al‑Faisal, a Saudi Arabian national.  On the expiration of the contractual term of the tenancy, Mr Al‑Faisal remained in occupation of the property as a statutory tenant.  In 1987, the Appellant went through an Islamic marriage ceremony at a mosque in Baker Street, London, W1.  Their two children, Mohammad and Khalid, were born in 1991 and 1994 respectively.  Khalid suffers from an unfortunate mental health problem.  
8.	Mr Ian Edge, the Respondent's expert witness, whose evidence was common ground before the judge, said of this marriage that:
"Although there may be questions about the validity of the Islamic ceremony of marriage in England, it would be accepted as a valid marriage in Morocco and Saudi Arabia." 
9.	This marriage was also accepted before the judge and before us as having been what Holman J in Dukali v Lamrani [2012] 2 FLR 1099 described at paragraph 44 as a “non‑marriage”.  That judgment was approved by this court (Thorpe and Black LJ and Hedley J) in Shagroon v Sharbatly [2013] 2 WLR 1255 at paragraphs 32 to 33 where it was held that such a marriage was not a "marriage for the purposes of section 12 and part 3 of the Matrimonial Causes Act 1984". 
10.	In 1988, it appears that Mr Al‑Faisal married a second wife, perhaps in Saudi Arabia.  None of the consequences of this second polygamous marriage were explored in the Court below and it does not seem to me to be appropriate for us to explore them either.  
11.	On 20 January 1993, as I have said, the Casablanca court of first instance in Morocco issued a certified copy of a "marriage contract" between the Appellant and Mr Al‑Faisal which, according to Mr Edge's expert evidence, was of a kind he had not seen before, but which "seems to accept the evidence as proof of a valid marriage having occurred".  That marriage was, however, on the face of the documents, as I have also said, one that was continuing.  In or about 2002 or 2003, the Appellant and Mr Al‑Faisal, according to the judge's findings, separated and continued to reside together at the property.  
12.	The judge made reference in her judgment to certain hearsay evidence from a Ms Maria Salvador, whose evidence she found reliable, that Mr Al‑Faisal had told Miss Salvador that in 2009, shortly before he had an operation, he had divorced the Appellant.  This alleged divorce was not specifically relied upon before us by Miss Monica Carrs‑Frisk, QC, leading counsel for the Respondent landlord.  
13.	On 19 November 2010, Mr Al‑Faisal died, apparently in Saudi Arabia.  On 8 October 2011, the Ministry of Justice of the Kingdom of Saudi Arabia issued a “deed of confirmation of limitation of inheritance” in respect of Mr Al‑Faisal stating that his inheritance was limited to his "wives" (one of whom was the Appellant) and his six children (two of whom were the Appellant's children).  This document was not relied upon as evidence of any marriage beyond what I have already mentioned.  
14.	On 7 November 2012, HHJ Baucher gave judgment after a two day trial, granting the Respondent possession of the property and holding that the Appellant was not the surviving spouse of Mr Al-Faisal for the purposes of paragraph 2(1).  She also held that the Appellant could not satisfy the deeming provisions in paragraph 2(1) to which I shall come in a moment.  
15.	On 2 February 2013, McCombe LJ granted the Appellant permission to appeal in relation only to the contention that the Appellant had satisfied paragraph 2(1) of Schedule 1 to the Rent Act 1977.  
16.	The relevant provisions of Schedule 1 to the Rent Act 1977 as amended provide as follows: 
"Paragraph 2 below shall have effect, subject to section 2(3) of this Act, for the purpose of determining who is the statutory tenant of a dwelling‑house by succession after the death of the person (in this Part of this Schedule referred to as "the original tenant") who, immediately before his death, was a protected tenant of the dwelling‑house or the statutory tenant of it by virtue of his previous protected tenancy. 
(1) 	The surviving spouse or surviving civil partner (if any) of the original tenant, if residing in the dwelling‑house immediately before the death of the original tenant, shall after the death be the statutory tenant if and so long as he or she occupies the dwelling‑house as his or her residence. 
 (2) 	For the purposes of this paragraph 
 (a) 	a person who was living with the original tenant as his or her wife or husband shall be treated as the spouse of the original tenant and 
 (b) 	a person who was living with the original tenant as if they were civil partners shall be treated as the civil partner of the original tenant. 
 (3) 	If, immediately after the death of the original tenant, there is, by virtue of sub‑paragraph (2) above, more than one person who fulfills the conditions in sub‑paragraph (1) above, such one of them as may be decided by agreement or, in default of agreement, by the county court shall for the purposes of this paragraph be treated as according to whether that one of them is of the opposite sex to or as the same sex as the original tenant the surviving spouse or the surviving civil partner." 
17.	On the main question before us, we have been referred to a number of authorities as to the meaning of "the surviving spouse".  In Fitzpatrick v Sterling Housing Association [2001] 1 AC 7, Lord Slynn of Hedley said this about the point at page 34 B‑D:
"The first question then is whether the plaintiff was the "spouse" of Mr Thompson within the meaning of paragraph 2 of Schedule 1 to the 1977 Act, as amended.  I recognise that if the non‑gender specific noun "spouse" stood alone the matter might be more debatable as Mr Blake contends though the ordinary meaning is plainly "husband" or "wife".  In the context of this Act, however, "spouse" means in my view legally a husband or wife.  The 1988 amendment extended the meaning to include as a "spouse" a person living with the original tenant "as his or her wife or husband".  This was obviously intended to include persons not legally husband and wife who lived as such without being married.  That prima facie means a man and a woman..." 
18. 	In Ghaidan v Godin‑Mendoza [2004] 2 AC 557, the House of Lords considered whether paragraph 2(2) could be extended to same sex couples.  Paragraph 2(1) was not specifically in issue, but Lord Millett (who dissented on the Human Rights Act point argued in that case) said this at paragraph 78 obiter: 
"Paragraph 2(1) provides that "the surviving spouse" of the deceased tenant shall succeed to the statutory tenancy.  The word "spouse" means a party to a lawful marriage.  It may refer indifferently to a lawfully wedded husband or a lawfully wedded wife, and to this extent is not gender specific.  But it is gender specific in relation to the other party to the relationship..." 
19.	In my judgment, these authorities, taken together with Dukali v Lamrani to which I have already referred, demonstrate, as is obvious from the context of paragraphs 2(1) and 2(2) that the term “the surviving spouse” has rather more formality about it than the term “a person who was living with the original tenant as his or her wife or wife or husband” in paragraph 2(2)(a).  It is not, therefore, to be given the flexible meaning that was adopted by the Court of Appeal for the word "family" in then equivalent provisions.  (See Brock v Wollams [1949] 2 KB 388 at page 394 per Bucknill LJ and page 395 per Cohen LJ). 
20.	The flexibility in the schedule to the Rent Act 1977, as it seems to me and as was pointed out by Lord Slynn in the passage that I have cited, is provided by paragraph 2(2) which refers to persons "living with the original tenant as his or her wife or husband".  That provision did not, of course, apply here because Mr Al‑Faisal had, as the judge found, left the Appellant in 2002 or 2003.  
21.	The only question that we have to decide is whether the judge was right to hold that the Appellant was not Mr Al‑Faisal's surviving spouse for the purposes of paragraph 2(1) as a result of the Sharia ceremony in the London mosque in 1987.  
22.	In my judgment, the judge was right because there was no formal marriage ceremony valid under English law upon which the Appellant was able to rely.  I would prefer to leave open whether the judge was right to hold that the only way in which a person can qualify as "the surviving spouse" for the purposes of paragraph 2(1) is by showing that they underwent a ceremony of marriage valid under the Marriage Acts.  It may be that some or all foreign ceremonies of marriage would allow a person to qualify, but we do not need to decide that point today.  What I can say is that the Appellant, on the evidence before the judge, never went through any valid ceremony of marriage recognised in the country in which the ceremony took place.  Accordingly, she did not, I think, reach the starting blocks.  The words "the surviving spouse" as used in paragraph 2(1) seem to me obviously to contemplate in relation to a person relying upon a marriage ceremony a person who, by that ceremony, became legally the wife or husband in the country in which the ceremony took place.  
23.	The Appellant also relied in her grounds of appeal on the contention that giving a restrictive meaning to the word "the surviving spouse" for the purposes of paragraph 2(1) would be in breach of the Court's obligations under section 3(1) of the Human Rights Act 1980.  Mr Staddon did not press this point in oral argument and I think he was right not to do so.  I do not think that construing the word “spouse” in the way that I have suggested can be discriminatory on the ground of religion.  Members of any religion are able, as well as any others, to enter into valid ceremonies of marriage.  
24.	For the reasons I have sought shortly to give, I would dismiss this appeal. 

LADY JUSTICE GLOSTER:  I agree. 
LORD JUSTICE MOSES:  I also agree.