Facts:
The couple, Ms Monisha Mahtani and Mr. Vivek Hariram Mahtani married in March 2003. She is British and he is Indonesian. They have two children. The husband comes from a prominent and wealthy family in Indonesia. During their marriage, they lived a life of luxury. She estimated his wealth at around $45 million.
The family lived in Indonesia until 2016 when the wife decided to travel with the children to England to visit family. However, while here, she decided to remain in England and leave her husband. In response the husband cut all financial support.
In July 2017, the husband commenced divorce proceedings in Indonesia where he claimed that he did not know her whereabouts, which was overtly untrue. The decision left the wife without any rights to any of the husband’s assets. The wife submitted that she could not commence proceedings in Indonesia to set aside the divorce as she could not afford a good lawyer and would have to fight in a system where her husband was very influential.
Decision:
The decision concerned an application to lift a stay on the wife’s English divorce and financial remedy proceedings. The Judge refused to recognise the Indonesian divorce under section 51(3) of the Family Law Act 1986. Consequently, marriage is still valid in England and the wife’s applications could be heard there.
For section 51(3) to apply, the case must pass two stages; the first stage regarding the ‘reasonable steps’ and the second, the ‘for’ and ‘against’ factors to refuse recognition.
Regarding the first stage, the Judge carefully analysed the facts to determine whether the husband took ‘reasonable steps’ to give notice of proceedings to the wife. The reasoning of the court was based on the fact that the husband had deliberately lied to the Indonesian court by mentioning he did not know her whereabouts and had no means to communicate with her. Therefore, as the conditions in section 51(3)(a) were met, the Court could continue to the second stage.
The Judge listed the factors in favour of and against recognition. After carefully balancing those factors, the Judge used his discretion to refuse recognition. He adopted the words of Mostyn J in Liaw v Lee [2016] 1 FLR 533 “…there is the compelling argument that to decline to refuse recognition in this case would be grossly unjust and would in effect reward dishonesty and sharp practice. It would send out a signal that conduct such as I have described is tolerable.”
Implications:
This case demonstrates that English courts are not willing to recognise a divorce at whatever costs. At the same time to avoid opening the floodgates to review every foreign divorce case, the test under section 51(3) is quite difficult to pass and is, in fact, very sensitive. Judges will only consider stage two if stage one is satisfied.
The judgement also highlights that dishonesty could lead to the refusal of recognition of a divorce decree.
This judgment is also limited, as the facts were very specific and clear.