Tufail v Riaz

An English court should not proceed to dissolve a marriage if, on the material available, it probably has already been dissolved abroad. Where the foreign divorce’s validity remains unresolved and requires determination under foreign law, the appropriate course may be to stay the English divorce petition rather than dismiss it or make a binding declaration. The stay may be removed if the foreign divorce is later rescinded, set aside or declared invalid. A provisional assessment based on the balance of probabilities does not amount to a final determination of validity or recognition.

The wife petitioned for divorce in England after the parties had married in Pakistan and lived at different times in England and Pakistan. The husband relied on a Pakistani divorce certificate and asserted that the marriage had been finally dissolved there. The wife challenged the legality of the Pakistani procedure through revision proceedings in Pakistan, which remained unresolved.

Following a district judge’s order, the matter was listed before the High Court to determine whether the certificate dissolved the marriage and what effect it had on the English proceedings. The wife was absent and unrepresented, while the husband appeared in person. The central issue was whether the English petition should proceed while the status of the Pakistani divorce remained uncertain.

1. Disposition. The petition for divorce was stayed indefinitely until further order of a High Court judge. No further steps could be taken on it unless the stay was removed.
2. There is ample English jurisdiction to dissolve the marriage because of the parties’ connections with England and Wales. However, the court can dissolve only a valid and subsisting marriage. If the marriage had already been validly dissolved in Pakistan, an English decree of divorce could not properly be made.
3. The court was not equipped to determine finally whether the Pakistani divorce certificate, or the procedure recorded by it, dissolved the marriage. There was no expert evidence of Pakistani law or of the certificate’s status in Pakistan. The wife’s challenge concerned alleged illegality in the procedure by which the certificate was obtained, matters realistically capable of resolution in Pakistan.
4. On the material available, including the apparently authentic sealed and stamped certificate, it appeared on the balance of probabilities only that the parties had probably been finally divorced in Pakistan with effect from 12 November 2012. That provisional assessment justified a stay, but did not constitute a final or binding finding of validity, divorce or formal recognition.
5. The order preserved the wife’s position. If she obtained an order in Pakistan rescinding, discharging, setting aside or nullifying the certificate, she could apply to remove the stay and continue the English petition. The order similarly protected the husband from parallel dissolution proceedings while he maintained the apparent validity of the Pakistani divorce.

The judgment records earlier procedural steps before the Birmingham County Court.

• District Judge O'Regan: On 10 December 2012, adjourned pronouncement of decree nisi and directed that the authenticity and legal effect of the Pakistani divorce certificate be considered by a High Court judge.
• High Court (Family Division): On 19 June 2013, stayed the English divorce petition indefinitely without determining the certificate’s validity or recognition.