Mr James Ewins KC sitting as a deputy High Court judge. Application by W for an order under s 51(3) of the Family Law Act 1986, for non-recognition of the overseas divorce obtained by H in Indonesia and for a stay on her English divorce petition and financial remedies application to be lifted.

W is a British citizen. It is understood that H is an Indonesian citizen. The parties married in London on 6 February 2003 and had a subsequent religious ceremony in Indonesia on 5 March 2003. The family lived a wealthy lifestyle in Indonesia until W and the parties’ two children travelled to England in May 2016, whereupon W decided to leave H permanently and remain in England. H then by and large cut off all financial support to W and the children; [18].

On 4 July 2017, H commenced divorce proceedings in Jakarta. The Indonesian divorce was subsequently pronounced on 14 November 2017. W said that she first found out about this in May 2018 when H made it known amongst family and friends that he was divorced. It is W’s case that H procured the Indonesian divorce by dishonestly representing that he did not know her whereabouts when they had been in communication as recently as June 2017. The Jakarta court’s decision that it had jurisdiction was also based in part on W having last known residence in South Jakarta, which was not true. Further, the Jakarta court stated that W had been properly and legally summoned. W denied this and said that she had not received any notice of H’s application for divorce in Indonesia, nor any summons nor any notices of hearings; [29]–[30].

W subsequently petitioned for divorce in England. When Googling an address for H, W came across a decision of the District Court of South Jakarta which appeared to be a determination of her financial claims upon divorce, the effect of which appeared to be that W had no rights to any of H’s assets or property and that she ‘may not claim anything back from the Joint Property, except bed linen and personal clothing’; [2].

H did not participate in any of the English proceedings. The hearing on 16 November 2023 thereby proceeded in H’s absence. When considering s 51(3)(a)(i), a judge must ask whether reasonable steps have been taken by the petitioner in the overseas jurisdiction to notify the respondent of the divorce proceedings in advance of them taking place. As Holman J noted at [34] in Olafisoye v Olafisoye (No 2) (Recognition) [2010] EWHC 3540 (Fam), there are two stages:

1. Were such steps not taken as ‘should reasonably have been taken’ to give notice of the proceedings to W?
2. Should the court exercise its discretion to refuse recognition of the decision of the Indonesian divorce?

Whether reasonable steps have been taken is to be judged by English standards and is a question of fact; [61].

Held

The court was satisfied that all reasonable steps had been taken by W to bring these proceedings to H’s attention; [6]. The court found that H was aware W was living in London and had her contact details, as was clear from the email communication between the parties, but that H had ‘deliberately hidden’ from the Indonesian court W’s whereabouts and presented a ‘false case’ to the Indonesian court. The conditions of s 51(3)(a) were made out:

The ‘gateway’ was therefore open to the second stage and in exercising the court’s discretion, Mr Ewins KC considered the arguments in favour of and against recognition of the Indonesian divorce.

1. In favour of recognition, the court considered that not recognising the Indonesian divorce risks creating a ‘limping marriage’; that the marriage had indeed broken down; that decisions of an overseas court should be respected and inconsistent decisions between jurisdictions, especially those relating to the marital status of parties should be avoided; that there had been undue delay by W’s failure to mention the Indonesian divorce in her English divorce petition; and that W would be able to bring proceedings under Part III of the Matrimonial and Family Proceedings Act 1984; [77].
2. Against recognition, the court considered that H had deliberately misled the Jakarta court; that a divorce order ought to be obtained fairly and due process rights ought to be properly observed; that as a result of H’s dishonesty, W was deprived of the opportunity of participating in the Indonesian divorce proceedings; that any ‘limping marriage’ will be short-lived because W seeks to proceed to the pronouncement of a final order of the English divorce; that the principles of comity do not require the court to recognise a decree which would have been set aside by the foreign court if that court were apprised of the full facts; that the delay caused by W’s failure to mention the Indonesian divorce was outweighed by the delay incurred by the consequences of H’s deliberate concealment; and that the issue of permission to make an application under Part III is currently before the Supreme Court and there is a material difference compared to an application under the Matrimonial Causes Act 1973; [78].

Balancing these, the court exercised its discretion to refuse to recognise the Indonesian divorce and 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…’

Application successful. Stay lifted on W’s English divorce and financial remedies proceedings.