Rough justice could face those without legal help, saws law firm

A solicitor with a leading law firm says a complex divorce case in which a judge admitted he had been able to dispense only ‘rough justice’ because neither party was legally represented highlights the importance of obtaining specialist advice.

Adam Maguire, a solicitor in Higgs & Sons’ family team, says the recent case of Tufail v Riaz at Birmingham’s High Court was made much more difficult for the judge by the absence of lawyers.

And he said the case showed how difficult it can be for justice to be done where there are complex issues involved and the parties are unrepresented.

Adam was speaking after Mr Justice Holman himself highlighted the limits of his own judgment during the court hearing.

Mr Justice Holman said the absence of lawyers on both sides meant he faced making a decision without the assistance of legal representatives or expert evidence, circumstances which he said ‘could hardly be more unsatisfactory’.

“I shall do my best to reach a fair and just outcome, but I am the first to acknowledge that I am doing little more than ‘rough justice’,” the judge said.

Adam said the case involved a couple who had married in Pakistan in 2010 and then moved to England. The wife had since returned to Pakistan while the husband remained within the UK.

The wife commenced divorce proceedings in England but before a Decree Absolute could be obtained in the English court the husband obtained a divorce certificate in Pakistan.
The husband argued that, because a divorce had already been obtained in Pakistan, the marriage had also been lawfully dissolved under English law and the court could not make an order.

The wife disputed the authenticity of the divorce certificate on the basis that it had been obtained illegally.

Adam said the judge reached a decision to ‘stay’ the English divorce proceedings, suspending any further court action, on the basis of the divorce certificate’s ‘apparent authenticity’. However, the judge made it clear that he could not say in any permanent or binding way that the parties had definitely been finally divorced in Pakistan as there was no expert evidence available.

Adam says “while the court did reach an outcome, this was clouded by the lack of information available to the judge. For the wife in particular, uncertainty will remain as to whether she is, in fact, divorced according to English law, or even in accordance with religious law, unless the issue can now be resolved in Pakistan.

“It is clear that the case was made much more difficult by the absence of lawyers at the time it came to be heard who could have presented expert evidence on the issues. With the right legal advice and assistance it would likely have made it easier and quicker for the court to dispense justice. The court may also have been able to reach a more definitive decision which would have allowed the parties greater certainty and to be able to move on with their lives.”

Higgs & Sons works from two offices in the Black Country – Waterfront Business Park in Brierley Hill and Kingswinford. The firm employs more than 200 people, which includes over 100 specialist lawyers.

For specialist advice relating to family issues, contact Adam on 0845 111 5050 or email