Refusal of Application for Stay of Divorce Petition, Re

The original applicant is the wife (W), represented by Mr Baker of counsel. The original respondent is the husband (H), represented by Mr Lyne. I am grateful to them both for their assistance.

W issued an application for a final order of divorce on 8 December 2023.

H opposed the application, stating that the court does not have jurisdiction to hear the application on the basis that he had made an application for divorce to the courts in Egypt. He says his application pre-dated W’s proceedings. H says that W’s response to his application was that although H took steps to start divorce proceedings first, the divorce application was not registered until 13 December 2023 and so five days after her application. W has also said that H had failed to effect valid service upon her of his Egyptian divorce application.

There are therefore two applications before the court, but H is treated as the lead applicant for the purpose of this hearing.

At a hearing on 11 April 2024 District Judge Markland deemed H’s D11 opposing the divorce to be an application for a stay pursuant to section 5(6) and schedule 1 paragraph 9 of the Domicile and Matrimonial Proceedings Act 1973.

Since that time there have been many hearings both in this jurisdiction and in Egypt.

For the purpose of this hearing both parties have filed two statements with exhibits. The court has the benefit of the written expert evidence from Mr Andrew Allen KC. In addition, I have been provided with a bundle. I have heard oral evidence from both parties who have been subjected to cross-examination. I have also had the benefit of oral and written submissions from counsel.

The parties married in 1996 and produced two children from the marriage, now aged 24 and 19. The parties are both Egyptian nationals and were married in Egypt.

W and the children moved to the UK in 2013. H moved to the UK in 2020. There is significant dispute between the parties as to exactly what was said about W and the children relocating to the UK and also following their separation. They separated in November 2023.

H issued divorce proceedings in Egypt. H’s first in time divorce application remains live (case no 4639 of 2023). It started as a divorce for cause but has been amended as a result of the Talaq divorce. It has since been amended back due to W’s successful appeal in respect of the second application.

H’s second application in time (case no 810 of 2024) was to obtain registration of a Talaq divorce uttered by him on 1 February 2024. Registration was granted on 27 April 2024. W appealed that order on 19 February 2025. This was on the basis that service had not been effected. Oddly, H delivered papers to a registered address in Cairo despite W living in England. However, H has applied for the appeal to be reconsidered on the basis that he did not know W’s address in England as she had left the former matrimonial home. H’s appeal awaits consideration.

I have already referred to W’s petition.

The power to grant a stay of the divorce petition derives from the Domicile and Matrimonial Proceedings Act 1973 Section 5(6) and Schedule 1, paragraph 9:

Section 5(6) reads:

Schedule 1, paragraph 9 reads:

Paragraph 5(6) of Schedule 1 has been considered in a number of cases since the authoritative Court of Appeal Judgments in De Dampierre v De Dampierre [1987] 2 FLR 300 and House of Lords Judgments in Spiliada Maritime Corporation v Cansulex [1997] AC 460.

Happily, there is a comprehensive analysis of the relevant law in the rather more recent Judgment of HHJ Hess in SA v FA [2022] EWFC 115. At paragraph 20 the Judge said:

Mantegazza v Mantegazza [2017] EWHC 3811 (Fam) confirms that the timing of the application is relevant but not determinative.

There are many factual disputes between the parties some of which I have had to resolve. However, broadly speaking W says (i) H’s application is second in time (ii) W and the children have been living in England for a long time (iii) W is domiciled in England (iv) H’s applications in Egypt are flawed and will not succeed (v) only H can divorce in Egypt (vi) her prospects of a fair settlement are poorer in Egypt (vii) the bulk of the assets are in England (viii) W will struggle to prove the assets in Egypt and

H opposes all of W’s arguments.

H was a somewhat garrulous witness who frequently told the court what he wanted to say rather than answering the question asked of him. I was not always impressed by his evidence or considered it to be reliable.

W’s evidence started off in a more focused way but she also digressed into answering questions with what she wanted to say rather than answering what was asked of her. Whilst I was concerned about some aspects of her evidence, overall, contrary to the submission by Mr Lyne, it was not the case that I found her to be less reliable than H.

I have carefully considered all the evidence including the expert evidence of Mr Allen KC noting the following:

Notably, Mr Allen KC observes that the appeal court in Egypt has already determined that H failed to properly serve W in respect of the second application. If the same method of service was used in relation to the first application, Mr Allen KC opines that he may well have failed to serve her in that case too. However, he notes that W has engaged in the first application and that may be taken into account. The Egyptian court has also been critical of H’s failure to supply documents in respect of the religious denomination of the parties and specialist reports.

H has attempted to revive the second application on the basis that the parties are divorced according to the Shari’a. Mr Allen KC says H merely needs to find a mechanism to have that divorce registered and to properly serve W.

As for the first application, Mr Allen opines that the date of the proceedings is 13 December 2023. This remains his view despite references in clarifying questions by H to articles 6 and 9 Egyptian Law No 10 and the date his reconciliation request was stamped.

In reaching this decision I do not refer to all the evidence I have read and heard, it being neither necessary nor proportionate for me to do so.

The following statements are not controversial. First, the parties are both Egyptian nationals. Secondly, their original domicile was Egypt. Thirdly, the marriage is a long one of some 27 years. Fourthly, they married under a Christian marriage contract. Fifthly, their children were born in Egypt. Sixthly, the parties are Evangelical Christians (also referred to as the Coptic Evangelical Church) although the husband says he changed his denomination to Syrian orthodox in January 2023. Nearly all other matters are in dispute.

W based her petition on the basis that both parties were habitually resident in England and Wales. It is bad point to say that she did not pursue her application on the basis of being domiciled here – there are several ways in which a party seeking a divorce can apply and W simply needed to tick one of the applicable boxes.

H has presented two applications to the Egyptian court. His first case was based on harm/bad treatment. H was asked about the divorce being based under the rules for Christians and was unable to give a straight-forward answer asserting that there was no basis for a Christian divorce in Egypt which could only be achieved under Muslim law (this being contrary to the expert evidence).

On H’s behalf much is said about the argument as to who was first in time having fallen away since Brexit. Timing is a factor but is not determinative. However, it has been a significant argument for H in that the presentation of his case has included challenging the expert on this in clarifying questions. It appears that only since the expert has remained firm in his view – which I share – that H now seems to say that this is a ‘non-point.’ For the avoidance of doubt, I reject H’s argument that on the basis of intentions, he was first. Simply because he was required to file a mandatory settlement application first does not mean that he had the first intention. Both parties were dependent upon the actions of professionals to advance their respective applications. Further, W left H and both parties accept that H wanted her to come home and try again which she did not do.

H’s first application in Egypt is still live. There was a hearing last week. H says there will be a ruling on 25 October 2025 but he does not know what will happen. On the basis that it is now a divorce based on harm, he said this may need to be investigated. H said it was initially based on harm but he changed it on the direction of his lawyers who said it would be quicker if he amended it to basing it on the completion of his second divorce. H said that judges take decisions faster where there is a difference in denomination.

W said the hearing on 25 October will either see the judge dismiss the application or investigate the question of harm. To date the announcement has not been properly addressed by H. The court still wants to review the documents in respect of the change of denomination.

It was put to W that in respect of the first application, the two solicitors were supposed to share information before the hearing on 12 October 2025 so that the parties were on a level playing field. W did not accept this was the case and said the announcement had to be set out in in a document in a formal way; a new petition has to be prepared which the court would send to her. I have no evidence to know whether either position is correct. W did not accept that the next hearing would consider the grounds. More generally, W accepted that she had lawyers in respect of the first case since March 2024 but said she knew nothing about the second case until July 2024.

H was clear in his evidence that he wanted to get divorced first and he asked his solicitor how to do this. If this is right, it was hard to understand why he did not pursue a Talaq divorce in the first place given that he says he changed his religion in January 2023. H’s application was not pursued until November 2023. As for the submission by Mr Lyne that pursuing a Talaq divorce would have taken longer as he would need to be present in Egypt to appear before a court, this is not one I accept. A fault-based divorce on the expert evidence is likely to require investigation and H accepted this was so.

H said that he has amended his first petition back to rely on harm/bad treatment which was necessary once W successfully revoked the second proceedings. It was no longer a valid way of proceeding to link the two divorces. H said his second divorce relies on his change of denomination. He uttered the Talaq on 1 February 2024 (over a year after he had changed denomination) and it was registered on 27 April 2024. W had this set aside but only on the basis of not having been served.

At this stage, it is worth exploring H’s evidence as to his change of denomination. H said he started to attend the Syriac Orthodox church when he was working in Qatar in 2017. He said he was invited to the Syriac Orthodox church by people who worked at

He denied having obtained a certificate which he relied upon for his second divorce illegally and relies upon the translated judgment in which there is reference to the letter from the Patriarchate to the court (19 February 2025). This document has been the subject of dispute during the hearing.

Mr Lyne says it is absolutely clear that there is no need for me to determine H’s change of denomination as a fact as it is addressed in the judgment when it records that the first instance court decision was based upon H uttering the Talaq which he did on 1 February 2024 which was then registered on 27 April 2024. Mr Lyne says it is clear that the first instance court made enquiries of the Patriarchate and had direct confirmation that H had changed his denomination which is valid.

On behalf of W, Mr Baker says that is not the position. He says that as W was successful on the basis of service not having been effected, H’s application fell at that hurdle meaning there was no requirement for the court to go on an consider the other two grounds of W’s appeal.

First, I note that the transcript makes reference to ‘W currently residing at’ and specifies her address. The document is dated 19 February 2025 (the parties refer to a court hearing on 27 February 2025). It may be that there was a delay before the parties received it. Nonetheless, it weakens some of H’s arguments as to not being provided with an address in this jurisdiction and what was said or not said at the hearing on 13 February 2025. It is likely that W had provided her address prior to the date of this document as the court must have got the information from somewhere since it does not appear that the parties attended court in February 2025.

Secondly, the judgment does not dismiss W’s other grounds of appeal, rather it sets out the background. Its focus was on service, as unless there had been good service, the application could not continue.

Thirdly, even if it is in the context of the first application, H’s change of denomination seems to remain an issue for the Egyptian courts. If it was as clear cut as Mr Lyne submits, why would the court still be referencing this and H being asked to prove his change of denomination on 15 June 2025?

Fourthly, if H is so confident the Shari’a divorce is finalised, why is he pursuing his fault-based divorce which presumably saw H accept that he and W were of the same denomination without any reference being made in his first application to have changed denomination.

Fifthly, H says that he could simply start the Talaq process again on the basis of W’s address in Town X. Whether that might see W raise the question of his change of denomination I do not know but on his own case it would take some months.

As for service, H maintains that he did not know where W was living and does not know now. He served her at the address on her national identity card when he knew she was not living in Egypt. W said her divorce petition gave her address for service as being that of her solicitors. H knew where she was staying as he asked her if she was staying at the address of her friend although she did not reply. The minster of the church also told him. The children clearly knew too. She says she also put the address in her appeal against his application in August 2024. Why she did not address this in her statements I thought was troubling but it seems that she must be right as her address is referred to in the February 2025 judgment. However, why her first statement (May 2024) contained a confidential address was unclear. W was asked about the hearing in February 2025 when it was put to her that this court had asked if H knew where she was living to which H said ‘no’ and W had not corrected the position. She told me she could not speak as she was represented and she felt too anxious to say anything. Again, I thought this was troubling but this appears to be somewhat of a red herring on the basis of the appeal judgment. She went on to say that she had moved in March of this year and H does not know her new address but if asked she would provide it.

H’s second application has been adjourned until November. H says he does not know anything more but went on to say that W wanted to provide more details to the court about her address and that H knew where she could be served (indicating that he deliberately effected service at an address where she was not living).

H was unable to provide a satisfactory answer to whether a certificate of change of denomination is still required by the court. His evidence was hard to follow and even harder to accept when he referred to submitting a certificate which was held in the file for the first application. He referred to a copy being lost and the matter being reported to the police. He has not provided any independent evidence of this being the case and I was not prepared to accept his evidence.

I have already referred to Mr Allen KC’s reference to some individuals paying the church to secure a change in denomination. H denied having done so saying that he paid a modest contribution which was expected from all those who attended.

Both parties have been secretive about their applications. H was silent about his second application when he attended before DJ Markland in April 2024. It matters not that he is not a lawyer, he chose to conceal an important application which was before the court in Egypt. Likewise, W has said nothing to the courts in Egypt about her proceedings in this jurisdiction until some point this year (W says June; H says this was about two weeks ago). Neither has been open and honest.

Whilst W has participated in the proceedings in Egypt, she says not done so from the outset. H’s conduct of the proceedings in Egypt is a concern. This is particularly so in respect of serving W at a property in Cairo where he knew she was not living. Any arguments about serving W at her address on her National Identity Card are not persuasive. His failure to provide documents has seen a stay penalty applied by the court in Egypt.

In short, both of H’s applications are ongoing with further hearings scheduled and no clear end date in sight despite nearly two years having passed since his first application.

Taking all matters into account, on the evidence before me, it is apparent that there are problems with both of H’s applications in Egypt. I do not accept that H’s applications are further advanced. The expert evidence does not support this either. Conversely, if I refuse H’s application for a stay, W can simply apply for a final order in this jurisdiction.

I accept and it appears from the expert evidence that W could not easily obtain a divorce in Egypt. This is particularly so on her case as to the parties being of the same denomination.

Although there was much focus on the court proceedings in Egypt, I must consider all the circumstances of the case and not just those relating to the litigation and consider where the parties have the most real and substantial connection.

I was surprised to hear from H when cross-examined that he has two siblings (with whom he is close) who have lived in Y for many years who he has been visiting since 1990.

In 2011/2012 H bought a property in Town Z which he did having sold three properties in Egypt. He confirmed that they had a good life in Egypt. He had a good job and this was also the case for W. However, they reconsidered what to do due to the unrest. There was a concern that their son’s school bus was going to be hijacked. W accepted this was the case. H said he and his family did not feel safe in Egypt. W accepted this too. H said his decision for the family to move here was nothing to do with his siblings being here. He said he did not think of himself but he financed the family’s move. He was keen to tell me on more than one occasion that he paid for everything. Even if their intentions were not clear in 2011, the position changed in 2013 when W and the children moved to England. W says there was nothing temporary about the move, they were emigrating.

Following the move by W and the children, H invested in a business which W was to run. In my view that was again part of the plan to be based here. Whilst money may have been lost, the intention was for the parties or W at least to operate a care home – a business in this jurisdiction. At no time has H replenished the assets in Egypt.

H says that as W has not and is not working, this is yet another factor to support her not being settled here. W says she does work but her income is supplemented by universal credit. She plans on sitting an exam for a diploma which will assist her to increase her earning capacity but she has been too pre-occupied with the court proceedings to do this. I have no reason to doubt her evidence on this point.

Other arguments such as the parties still using the National Bank of Egypt for expenditure in this country do not advance matters. However, notably there are considerable savings held by H in this jurisdiction.

W is registered with a GP and dentist here and has built up a support network through the church and living here. W says H also continues to be registered with a GP and dentist and she was not challenged in this respect.

As for the children, they have largely grown up in England. L remains at university here. H says just last week she said she had been offered a training contact with a firm which offers ‘international exposure’ and she hopes to work in D where she has spent some time during her studies. W said L wants to work for a magic circle firm and spend just six months in D. She said L’s language skills are not at a level for her to want to live and work in D. England is her home and L has said this to her on many occasions. In my view this is likely to be right given that she has grown up here.

H was very clear in his oral evidence that he is domiciled in Egypt although domicile has a different meaning in Egypt. He may be domiciled there now but whether that was always the case is not something I accept.

For W England was her home and that of the children from 2013. The home was purchased by H in 2019 H without a mortgage. This was where they lived. The property has a much greater value than the apartment in Egypt. It was more than just an investment as asserted by H and his argument now that it was needed for his pension is not one I accept. Even if their savings would not be sufficient in retirement, I reject the assertion that they planned on returning to Egypt. However, I do accept that any concerns about their safety and unrest are no longer present.

W and the children were granted indefinite leave to remain in 2018 and British citizenship the following year. H joined the family in 2020. H applied for indefinite leave to remain in September 2023 and British citizenship in December 2023 (notably after W had left the family home). When H applied for citizenship, he had to declare his intention to live here permanently which was his intention. It makes little sense for him to do this unless he was settled and settling here.

I note that W has maintained some connections with Egypt. The letter from the sports club is of no assistance. W was not honest about how much time she spent in Egypt. Even if she did not have the movement certificate, she would have known how much time she spent in Egypt and the reference (she says by her solicitor) to spending a maximum of 15 days a year there was inaccurate (she spent at least 30 days in Egypt in the years 2019 to 2021 and 73 days in 2022). However, whilst this is a concern I am not persuaded it takes matters much further.

It matters not that the parties have not given up their Egyptian citizenship. There is no reason for them to do so.

I am satisfied that W was habitually resident here from 2013 and domiciled here at about the same time and in any event by 2018. As for H, he was certainly habitually resident here from 2020 and likely domiciled here at the very latest by September 2023. Both parties were committed to this being their home.

As for the assets, there is a dispute between the parties as to the value of some. H says the FMH is worth £375,000 (W says £550,000). Even if H is right the property in Egypt is worth just £60,000 on his case (about £30,000 on W’s case). Whilst there is a bank account in Egypt with £33,000 in it, there are accounts in this jurisdiction amounting to about £100,000 as well as some low value vehicles.

As for any financial remedy proceedings, in England it is anticipated that there would be just three hearings – the first appointment, the financial dispute resolution (FDR) hearing followed by a final hearing which would only be required if the case did not settle at the FDR. I note what is said by Mr Allen KC in respect of the division of assets. It may not be the case that W would have an entitlement to all the assets. Of course, a worse outcome in Egypt cannot be determinative and I do not overlook that W could, if certain conditions were met, apply for financial relief in this country under Part III Matrimonial and Family Proceedings Act 1984 even if the proceedings were to continue to Egypt.

As the bulk of the assets are in England and any sale of the family home will be addressed here, in my view there is unlikely to be an argument about enforcement. However, I wonder how W would enforce any order about a UK property and English bank accounts in Egypt? I reject the suggestion by Mr Lyne that this would be straight forward.

Mr Lyne asserts that there are two forums available but I should find that Egypt is the natural forum.

The burden of establishing that the balance of fairness means that the case should be heard in Egypt is on H. He has to show that Egypt is the more appropriate forum. If he fails to discharge that burden, his application will be dismissed. If he does so, the burden then falls on W to establish that a stay would deprive her of some legitimate personal or juridical advantage or can show some other special circumstances by virtue of which justice requires that the trial should take place here.

I am not persuaded I need to conclude that there are two forums namely Egypt and England when in my view, England is clearly the place where the parties had the most real and substantial connection. Both parties were habitually resident here until after the separation when H decided he wanted to get divorced in Egypt and moved back to that country. Both parties committed themselves in practical terms to this being their home which is where their children have resided (and L still does) and were educated. Further, this is where the bulk of the assets are. W remains habitually resident and domiciled here. Whatever the children do in the future, is not known and is not determinative.

It is hard to see any argument against England being more convenient to both parties. Whilst there is a property and some assets in Egypt the family home and assets of a higher value are in this jurisdiction. Both parties have incurred expenses in respect of the proceedings in Egypt although the reality is these have not really progressed with there being uncertainty as to the role of future hearings. If the parties were required to attend court hearings in Egypt this would involve further expense in a case where the parties are likely to be the only witnesses in a case where the bulk of the assets are here.

In conclusion, in my judgment, having consider the legislation and the supporting case law, H has not satisfied me that the parties are better connected to Egypt and that the natural forum is Egypt. England is plainly the appropriate forum. The burden rests with H to establish there should be a stay and he has not satisfied me that a stay should be granted. Whilst I invited the parties to make submissions covering all aspects of the test, I am satisfied that I need go no further. That therefore is the end of the application and H’s application for a stay is refused.

Where does that leave the proceedings in Egypt? Having already determined that England is the natural forum, in my view it would be unconscionable on the part of H to continue the proceedings in Egypt. I will hear from the parties as to the way forward. Otherwise, that is my judgment.