Monisha Mahtani v Vivek Hariram Mahtani

Recognition of an overseas divorce may be refused where reasonable steps were not taken to notify the other spouse, judged by English standards while having regard to the nature of the foreign proceedings and all the circumstances.

That gateway leads to a broad discretion. Comity and the avoidance of a limping marriage are important, but they do not require recognition where the divorce was procured by deliberately misleading the foreign court and the spouse was deprived of notice and an opportunity to participate. Alternative relief under Matrimonial and Family Proceedings Act 1984 Part III may not adequately protect the spouse’s interests.

The applicant, a British citizen, and the respondent, understood to be an Indonesian citizen, married in London in 2003. The applicant moved to England with the children in 2016. The respondent obtained an Indonesian divorce in November 2017 without the applicant’s participation.

The applicant applied under section 51(3) of the Family Law Act 1986 for the Indonesian divorce not to be recognised. The respondent did not participate despite service by several methods. The central issues were whether reasonable steps had been taken to notify the applicant and, if not, whether recognition should nevertheless be granted in the court’s discretion.

1. Proceeding in the respondent’s absence. The applicant had taken all reasonable steps to bring the proceedings and hearing to the respondent’s attention. The court was therefore entitled to proceed in his absence.
2. Stage 1. Section 51(3)(a)(i) of the Family Law Act 1986 required an assessment, according to English standards and having regard to the nature of the Indonesian proceedings, of the steps that should reasonably have been taken to give notice. The respondent knew that the applicant lived in London and knew means of contacting her, but concealed that information from the Indonesian court. The resulting summonses were ineffective. The statutory gateway was therefore satisfied.
3. Stage 2. The court then had a broad discretion whether to recognise the divorce. Relevant factors included the risk of a limping marriage, comity, delay, the circumstances in which notice was withheld, the importance of due process, and whether alternative relief would protect the applicant’s interests.
4. The respondent’s deliberate misleading of the Indonesian court, the applicant’s deprivation of notice and participation, and the inadequacy and uncertainty of Part III relief outweighed the factors favouring recognition. Comity did not require recognition of a decree which would likely have been set aside by the foreign court if apprised of the true facts.
5. Recognition of the Indonesian divorce pronounced on 14 November 2017 was refused. The marriage remained subsisting under English law, and the stay on the English divorce and financial remedy proceedings was lifted.