Mahtani v Mahtani – London, Legal Change and Global Divorce
Published on 11 January, 2024 | Emma Whitehead
London is one of the major global cities and, as such, has magnetic appeal not only for foreign visitors but for those wishing to work and live in England.
More than its tourist attractions and vibrant business community, London has added another dimension to its reputation over time as the world’s divorce capital.
As various commentators have observed and numerous big-money settlements have proven, the discretion of English family law and its emphasis on fairness means that financially weaker spouses have achieved more generous settlements in courts here than they might have done elsewhere.
That fuelled something known as ‘forum shopping’ – effectively, a race between separating spouses to secure the right to have their divorces heard in jurisdictions which they believe are more likely to grant them a favourable outcome.
A notable ruling in one such international divorce has just been published and illustrates the reach of family courts in England and Wales.
It was brought by Monisha Mahtani, the estranged wife of an Indonesian businessman, Vivek Mahtani (https://www.bailii.org/ew/cases/EWHC/Fam/2023/2988.html).
In September 2021, five years after she and the couple’s two children had relocated from Jakarta to London, she petitioned for divorce, alleging physical, emotional and financial abuse at her husband’s hands.
She obtained a decree nisi that December and began the process of establishing a financial settlement 12 months later.
However, it subsequently emerged that her husband had already been granted a divorce by a court in Indonesia in 2017 – a fact which Ms Mahtani had failed to include in her divorce petition.
The High Court stayed the English divorce to determine whether it or the Indonesian decisions held sway.
Mr James Ewins KC made clear that, under normal circumstances, “decisions of an overseas court should be respected”.
Yet he concluded that Mr Mahtani had “deliberately misled” the Indonesian authorities by claiming that he had no means of contacting his wife and, therefore, denied her a chance to participate in proceedings there.
As a result, she argued that she was completely unaware of the Indonesian divorce proceedings until well after their conclusion.
The English High Court’s decision means that the Indonesian divorce is voided and discussions about what proportion of Mr Mahtani’s estimated multi-million pound fortune his wife may now be entitled to can move forward.
Those deliberations are not necessarily straightforward. Even though Deputy Judge Ewins has stated that the Mahtanis’ marriage is “still subsisting under English law”, any settlement will have to take into account the seven years which have elapsed since the couple separated and any post-separation income which may have been generated.
Nevertheless, the judgement is one which does nothing to dull the sheen on English courts’ standing as being particularly helpful to less well-off foreign spouses.
There had been suggestions, of course, about whether that might happen when Britain withdrew from the European Union.
Before Brexit, a regulation known as ‘Brussels ii’ had applied, which sought to simplify the often complicated administration of cross-border divorce (https://eur-lex.europa.eu/EN/legal-content/summary/matrimonial-and-parental-judgments-jurisdiction-recognition-and-enforcement-brussels-iia.html).
Since, the question of which jurisdiction should handle the legal breakdown of a marriage has been based on the country with which the spouses involved have the closest connection (https://commonslibrary.parliament.uk/research-briefings/cbp-8671/).
Whilst the courts in England and Wales may be satisfied that Ms Mahtani meets the criteria to bring a case here, her ex-husband’s ties to Indonesia also justify proceedings there.
There may, in fact, need to be further proceedings to resolve that question.
The Mahtanis’ case shows that Brexit has not completely sidelined London as a venue for complex divorce hearings after all.
Even so, media reports maintain that there could still be a challenge to the capital’s status as the leading location for big money divorces
In April this year, the Law Commission announced a review of the law governing the financial aspects of divorce (https://lawcom.gov.uk/review-to-examine-50-year-old-laws-on-finances-after-divorce-and-the-ending-of-a-civil-partnership/).
It was intended as the second phase of a two-step process begun 12 months, when the Divorce, Dissolution and Separation Act 2020 – the first major reform of divorce law in half a century – took effect (https://www.legislation.gov.uk/ukpga/2020/11/contents/enacted).
The Law Commission’s review may undermine London’s appeal for some divorcing couples.
However, it may not check the ability of family courts to overturn decisions made by foreign courts if needs be, particularly given the focus on fairness.
This case should be a reminder to any divorcing spouse who may be tempted to exploit loopholes and a lack of full, frank disclosure in an effort to dodge their obligations to make adequate provision for financially weaker spouses.