Financial Remedies
November 2023

08 January 2024
The High Court considers whether to recognise a divorce granted by an overseas court.
Mahtani v Mahtani [2023] EWHC 2988 (Fam)

BackgroundThe Applicant Wife (“W”) is a British citizen, and the Respondent Husband (“H”) is understood to be an Indonesian citizen. W and H were married in London on 6 February 2003. They went through a subsequent Hindu wedding celebration in Indonesia on 5 March 2003. They have two children: [A], age 18, and [B], age, 15.

H has thus far not engaged with any of the English proceedings. He has not acknowledged receipt or service of, or responded to, any of the documents arising out of W's divorce petition issued on 6 September 2021, her Form A issued on 6 December 2022, or the application for non-recognition of the overseas divorce. The court was provided with various documents indicating that all the applications, orders and court bundles in the proceedings were served upon the respondent by various methods, including by post, personal service and by emails sent to various addresses which the court had authorised.

The court therefore only had information provided by W. Notably, W’s case is that, during the marriage, they lived a life of luxury where money was never an issue. H comes from a wealthy family and is a prominent businessman in his own regard. W states that H mixes with high society in Indonesia, including the President – who was a special guest at their wedding in London. W conservatively estimates H’s wealth to be in the region of $45million.

The family lived in Indonesia until 2016 when, in May, W travelled with the children from Indonesia to England for what was originally intended to be a holiday to visit family. However, whilst in London, W decided to leave H permanently and remain in England due to alleged physical, emotional and financial abuse. Upon H learning W was not returning to Indonesia, H cut off all financial support to W and the children.

On 4 July 2017, the respondent commenced divorce proceedings in Jakarta. At a hearing on 7 November 2017 the District Court of South Jakarta considered H's application for divorce. W did not attend. Therefore, the only evidence before the court in Jakarta was that of H and his witnesses. As is clear from the court's decision, it was H's case that the last known residence of W was in Jakarta and that they did not know her current whereabouts. W denies that this is true and says that H and the witnesses were aware that she had been in England since May 2016, that H was fully aware of her London address, and that he had been in communication with her in June 2017.

W denies having any notice of the Indonesian proceedings. The Indonesian divorce was subsequently pronounced by the District Court of South Jakarta on 14 November 2017. W states that she first found out about the divorce in May 2018 as a result of H making it known amongst family and friends in Indonesia that he was divorced. W’s case is that H procured the Indonesian divorce by dishonesty.

The Issues – (1) should the court recognise the Indonesian divorce? (2) Should the stay on the divorce and financial remedies proceedings in England and Wales be lifted?

Held – (1) the Indonesian divorce is not recognised. The marriage between the parties is therefore still subsisting under English law. (2) the stay on the divorce and financial remedies proceedings in England and Wales is lifted.

Discussion – Section 51(3) of the Family Law Act 1986 sets out the circumstances in which the validity of an overseas divorce may be refused. The power contained in 51(3), as a whole, provides for wide judicial discretion.

There is a two-stage test for the judge to consider. At stage 1, the court must make an assessment or judgment whether such steps were not taken as 'should reasonably have been taken'. If the court adjudges that there were not, the judge must proceed to consider stage 2. At stage 2, the Judge must consider the factors which they consider relevant, using the 'for' and 'against' presentation, to balance the issues and determine whether to exercise judicial discretion and refuse to recognise the overseas divorce.

In this case, both the stage 1 and stage 2 tests were satisfied.

The High Court considers an application pursuant to the case of Hadkinson
Williams v Williams [2023] EWHC 3098 (Fam)

Background - An application has been made by the applicant Wife (“W”) to Mr Justice Moor pursuant to the case of Hadkinson to prevent the Respondent Husband (“H”), from playing any part in the litigation unless he complies with the orders that have already been made against him. Further, W applied for a Legal Services Payment Order (“LSPO”).

It is as bad a case of non-compliance with court orders as the court has ever seen. H has resolutely refused to engage with the court proceedings. Indeed, at present, the allegation made against him is that he does occasionally engage with W's solicitors, but only, in fact, to cause trouble, rather than to be constructive. There are numerous orders that have been made against him that he has simply failed to comply with.

The disclosure suggests that, apart from some jewellery, W has no assets in her name whatsoever, whereas there is documentary evidence in the case that indicates that H may be a billionaire, but, because he has not filed his Form E, despite numerous orders that he should do so with penal notices attached, leading to applications for committal to prison for failure to comply, his current financial position is unknown. This situation, of course, inevitably increases W's costs considerably. It means that the entire burden of establishing the financial position in this case to date has been down to self-help, rather than compliance by H with the rules. Moreover, she is not in a position to fund the litigation herself because he has not given any assets to her during the marriage.

The Issues – (1) whether the court should make an LSPO. (2) whether the court should grant the application pursuant to the case of Hadkinson.

Held – (1) the court granted an LSPO. The court refused to make an order pursuant to the case of Hadkinson.

Discussion – The Judge has long taken the view that Hadkinson applications have no place in financial remedy proceedings prior to a final order being obtained. Different considerations can apply after a final order has been obtained and where there is a default in complying with the terms of that final order. On occasions, the defaulting party then makes applications which are costly to defend and may justify a Hadkinson order. In this particular case, however, the court would welcome applications from H because, to do so, he must begin to engage in the proceedings. Section 25 of the Matrimonial Causes Act 1973 applies to this case. The court has to investigate. It has to satisfy itself as to his financial circumstances. It has to make orders on the basis of the circumstances set out in the checklist in s.25(2). It is impossible to do so if a party is forbidden from playing any part in the proceedings.

Everything that the Judge has been trying to do has been the opposite of preventing H playing a full part in the proceedings. The orders made have been designed to get H to engage in these proceedings and to provide the financial evidence and information that is required.

In accordance with the law, an applicant needs two show evidence of two refusals of funding. W complies with that aspect of the legal requirements. The Judge was also told and accepted that the position of her solicitors, Vardags, is that the firm will not operate on a Sears Tooth agreement, whereby they would receive their costs out of any eventual settlement. The Judge was told that the firm would have to cease acting for W if its costs are unpaid.

The Judge, therefore, said that he was clearly of the view that an LSPO order is suitable in this case and that despite his nondisclosure, H has the means to fund W’s litigation. There has been disclosure that H has over £1 million in UK bank accounts that can be enforced against.

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