This judgment was handed down remotely at 10.30am on 16 January 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
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JAMES EWINS KC, SITTING AS A DEPUTY HIGH COURT JUDGE
James Ewins KC, sitting as a Deputy High Court Judge:
Introduction
- There is before me an application for financial remedies upon divorce made by the applicant wife, Monisha Mahtani, in Form A dated 11 November 2022 against the respondent husband, Vivek Mahtani.
- The defining characteristic of this application is the respondent's non-attendance at any hearing within these proceedings and his failure to make any financial disclosure whatsoever. In fact, he has not engaged in these proceedings at all and has not entered into any communication with the applicant, her legal advisors or the court, nor has he instructed anyone else to do so on his behalf.
Procedural Background
- The applicant's financial remedies application, save in respect of the application for maintenance pending suit and a legal services payment order, was stayed by Recorder Harris on 23 March 2023 pending determination of the applicant's application for non-recognition of the divorce pronounced by the Indonesian court on 14 November 2017. ¶2 of Recorder Harris' order stated:
It is recorded that the respondent has not attended the hearing today, but the court is satisfied that all reasonable steps have been taken to bring these proceedings to the respondent's attention and that he was served with notice of today's hearing via email (RMail) on 23 January 2023 and the bundle for today on 22 March 2023 via email (RMail).
- The applications for MPS and LSPO, which were supported by a statement signed by the applicant on 21 November 2022, were determined by Roberts J at a hybrid hearing on 5 May 2023. Roberts J made substantive MPS and LSPO orders. The respondent is currently in arrears of the maintenance pending suit ordered by Roberts J in the sum of £154,395.80 and has not paid the £72,774 LSPO that was ordered and payable in three instalments in 2023. Fortunately, the applicant has the benefit of a legal aid certificate.
- Roberts J also made case-management directions for the determination of the applicant's application for non-recognition of the foreign divorce. The order of Roberts J also stated, at ¶2:
It is recorded that the court was satisfied that all reasonable steps have been taken by the applicant to bring these proceedings to the respondent's attention and the court being satisfied that the respondent was served with notice of today's hearing via email (RMail) on 28 April 2023 and the bundle for today's hearing on 4 May 2023 via email (RMail), but he has failed to attend.
- With respect to the hearing listed to determine the application for non-recognition of the Indonesian divorce, Roberts J's order stated at ¶11:
WARNING: If the respondent fails to attend the determination hearing listed above, substantive orders may be made in his absence.
- Peel J gave further directions for the final hearing of the applicant's application for non-recognition of the foreign divorce at a remote PTR hearing on 16 October 2023. ¶2 of his order stated:
It is recorded that the court was satisfied that all reasonable steps have been taken by the applicant to bring these proceedings to the respondent's attention and the court being satisfied that the respondent was served with notice of today's hearing via email on 17 May 2023 and the bundle for today's hearing on 10 October 2023 via email, but he has failed to attend.
- And, in relation to the hearing listed to determine the application for non-recognition of the Indonesian divorce, the order stated at ¶11:
WARNING: If the respondent fails to attend the determination hearing listed above, substantive orders may be made in his absence.
- On 16-17 November 2023, I heard the application for non-recognition of the Indonesian divorce. The respondent did not attend. I refused to recognise the Indonesian divorce for reasons set out in my judgment which can be found at [2023] EWHC 2988 (Fam). I discharged the stay on the financial remedies application and made various case-management directions including that the applicant and respondent each file and serve Forms E and questionnaires and attend a remote First Appointment which was subsequently listed for 22 February 2024. I made a costs order against the respondent upon which interest at the judgment debt rate has been accruing since 1 December 2023.
- The applicant's Form E is dated 18 December 2023. The respondent did not file or serve a Form E. Neither party prepared questionnaires.
- In advance of the First Appointment, by an application dated 19 January 2024, the applicant applied for a worldwide freezing order over the respondent's assets and for various non-party disclosure orders. These applications were supported by an affidavit which was affirmed by the applicant on 19 February 2024.
- At a remote hearing on MS Teams on 22 February 2022, the start of which was delayed to ensure the respondent had had an opportunity to join, Francis J made a worldwide freezing order against the respondent. ¶11 of that freezing order stated:
a. The respondent shall attend the return date in person, unless he is given permission to attend remotely.
b. A Penal Notice is attached to this paragraph of this order, as follows:
"If you the within-named respondent, Vivek Hariram Mahtani, do not comply with this order you may be held in contempt of court and imprisoned or fined, or your assets may be seized."
- At that hearing, Francis J also made two non-party disclosure orders pursuant to FPR 2010, r. 21.2 that (1) [Bank A] and (2) [Bank B] provide disclosure of certain documents and information to the applicant.
- The return date of the freezing order was listed on 14 May 2024 when it came before Peel J, in person. Peel J made various case-management directions in the financial remedies application and his order recited the following at ¶2:
2. It is recorded that the respondent has failed to:
a. file and serve his financial statement in Form E as ordered on 16 February 2023;
b. file and serve a witness statement as ordered on 23 March 2023;
c. pay maintenance pending suit to the applicant as ordered on 5 May 2023;
d. pay provision for legal services pursuant to the legal services payment order on 5 May 2023;
e. file and serve a witness statement as ordered on 5 May 2023;
f. file and serve his financial statement in Form E (for a second time) as ordered on 17 November 2023;
g. serve a witness statement setting out all his assets worldwide, whether in his name or not and whether solely or jointly owned, giving the value, location and details of all such assets, as ordered on 22 February 2024;
h. attend, remotely or in person, any of the hearings before the courts of England and Wales;
i. take any other step to appropriately engage in these financial remedy proceedings or comply with the direction of the court herein.
- At ¶3 of that order it was recited that:
3. It is recorded that since the judgment and orders of Deputy High Court Judge James Ewins KC on 17 November 2023 the respondent has been served with:
a. the judgment and sealed orders of 17 November 2023 on 24 November 2024 to:
[3 email addresses] for which there has been confirmation of delivery [for each]
b. the notice of hearing for 22 February 2024 on 8 January 2024 to:
[2 email addresses which failed]
[2 email addresses] for which there has been confirmation of delivery [for each]
c. the applicant's application for a worldwide freezing order and non-party disclosure orders and her affidavit in support on 19 February 2024 to:
[1 email address which failed]
[3 email addresses] for which there has been confirmation of delivery [for each]
d. the approved and unsealed orders made by Mr Justice Francis on 22 February 2024 on 23 February 2024 to:
[2 email addresses which failed]
[2 email addresses] for which there has been confirmation of delivery [for each]
e. the sealed orders made by Mr Justice Francis on 22 February 2024, together with the applicant's affidavit in support and a note of the hearing on 1 March 2024 to:
[1 email address which failed]
[2 email addresses] for which there has been confirmation of delivery [for each]
f. the sealed orders made by Mr Justice Francis on 22 February 2024 (again) on 11 April 2024 to:
[1 email address which failed]
[2 emailed addresses] for which there has been confirmation of delivery [for each]
g. the notice of today's hearing on 1 May 2024 to:
i. [an email address] for which there has been a confirmation of delivery;
ii. [an email address] (a new address that the applicant has become aware of), for which there has been a confirmation of delivery and the message having been opened;
h. the notice of today's hearing on 13 May 2024 to:
[2 email addresses] for which there has been confirmation of delivery [for each]
- At ¶4, Peel J ordered the respondent to file a serve a Form E. A penal notice was attached to that order. The order for service by e-mail was repeated and amended, adding a new e-mail address for the respondent of which the applicant had become aware. The worldwide freezing order was continued until further order, an FDR was dispensed with, the case was allocated to me and the applicant's financial remedies application was listed for 3 days with both parties being ordered to attend in person at least one hour before the hearing. Peel J's order stated at ¶11:
If the respondent fails to file and serve his s.25 statement, the trial judge shall draw such inferences adverse to the respondent as may be appropriate.
- ¶14 of Peel J's order stated as follows:
The respondent shall by 16:00hrs on the date 21 days before the final hearing file and serve an application seeking permission for him to attend that hearing remotely and give evidence via video link in the event he is unable to attend in person, such application must be supported by evidence of his inability to attend. Any application by the respondent shall be dealt with by the court on the papers.
- And Peel J's order contained the following explicit warning at ¶15:
WARNING: If the respondent fails to attend the hearings listed above, the trial judge shall draw such inferences adverse to the respondent as may be appropriate and make final and substantive orders in his absence.
- On 14 May 2024, Peel J also made 16 further non-party disclosure orders against overseas various banks and a [European country] company.
- I have been shown the e-mail by which Peel J's orders were sent to the various e-mail addresses listed at ¶5 of his order as constituting effective service upon the respondent. I have also been shown a delivery confirmation from one of those addresses. I have also been shown a further e-mail sent to the respondent's various specified e-mail addresses on 5 November 2024 in which the date of this hearing was restated, as well as an invitation to the respondent to apply to attend remotely in accordance with ¶14 of Peel J's order. The respondent was subsequently sent both the applicant's s.25 statement and the bundle by e-mail to the same addresses. I am therefore satisfied that the details of the 15 May 2024 orders, specifically in relation to this hearing, have been brought to the respondent's attention. The respondent has not replied to any of the e-mails sent to him since 15 May 2024 nor has he made any application to attend remotely.
- The respondent did not attend at court for this hearing on 8 January 2025, or at all. In view of the various e-mails sent to him since 15 May 2024, I did not consider it necessary at the outset of this "in person" hearing, to incur the delay in converting it into a "hybrid" hearing for the respondent to attend remotely if he belatedly chose to do so. If the respondent had a change of heart during the hearing and wished to be heard, he was able to contact the applicant, her solicitors or the court by e-mail or telephone. He did not do so.
- I am satisfied that any prejudice to the respondent of proceeding with this hearing in his absence and in the absence of any evidence filed by him or on his behalf is entirely of his own making. I find that it is in the interests of justice pursuant to the overriding objective at FPR 2010 r.1.1 for to me to proceed to determine the applicant's financial remedies application in the respondent's absence without further delay. Consequently, the application before me shall be determined on the basis of the evidence and submissions on behalf of the applicant alone. In this regard, I am grateful to Mr Perrins and Ms Hibbert for their helpful documents and oral submissions.
Summary Background
- The respondent is a 52 year old businessman of Indian and Indonesian heritage, residing in Indonesia. The applicant is a 50 year old British-born woman of Indian descent, living in London. The parties married on 6 February 2003 in London and thereafter lived together in Indonesia.
- The applicant and respondent have two children: [Child A], age 19, who is a first-year undergraduate at [X] University and lives with the applicant during university holidays; and [Child B], age 16, a student in Year 12 at [School], studying for his A-Levels in 2026. He lives with the applicant.
- The children have lived with the applicant in England since May 2016 when, following the respondent's alleged domestic abuse of the applicant, she travelled to London with the parties' children for their annual summer break and did not return to Indonesia. Neither the applicant nor the children have seen their father since then. Having initially lived with the applicant's stepfather, the applicant and the children subsequently moved to a 2-bedroom private rented flat in London, where they still reside. On 15 May 2019, District Judge Hudd granted the applicant a "lives with" order in respect of the children and a prohibited steps order, prohibiting the respondent from removing the children from her care.
- The applicant has described her life living on benefits with two teenage sons in a 2-bedroom flat. The two boys share a room, which is especially challenging when they are ill and need to study.
- The respondent continues to reside in Indonesia. In her evidence, the applicant stated that her friends and contacts in Indonesia report that the respondent continues to maintain the high standard of living that the family enjoyed before 2016. The respondent has continued to block any attempts by the children to communicate with him, whether by telephone or social media.
Evidence
- I have read the following:
28.1. the applicant's statement in support of her MPS and LSPO application, dated 21 November 2022;
28.2. the applicant's statement dated 21 March 2023 in support of her application for non-recognition of the Indonesian divorce;
28.3. The applicant's Form E dated 18 December 2023;
28.4. The applicant's affidavit dated 19 February 2024 in support of her application for a freezing order and non-party disclosure orders;
28.5. The applicant's s.25 statement dated 23 December 2024.
- I also heard oral evidence from the applicant on 8 January 2024. As I found in November 2023, the applicant was an honest witness whom I consider was attempting to assist the court, repeatedly resisting any temptation to overstate her case. I have no hesitation in accepting her evidence as that of a credible witness.
- As I have said, I have been unable to consider any written or oral evidence from the respondent as he has not provided any, neither have I had the benefit of any response from him to the applicant's evidence.
Law
- The law I must apply is helpfully summarised by Peel J in WC v HC [2022] EWFC 22 at ¶21. I must have regard to s.25 of the Matrimonial Causes Act 1973, first consideration being given to the welfare while a minor of any child of the family who has not attained the age of eighteen. My objective is to achieve an outcome which is as fair as possible in all the circumstances. My award to the applicant should be the higher of that reached by the application of the sharing principle and that reached by application of the need principle. The concept of needs is elastic, cannot be considered in isolation and requires consideration of: the parties' financial needs, including both those generated by the marriage and by age or disability; the available financial resources, the source of which is also relevant to the assessment of needs; the standard of living enjoyed before the breakdown of the marriage; the ages of the parties; and their health. Whilst some cases have emphasised the aim of replicating the standard of living enjoyed during the marriage where possible, others have pointed out that the standard of living cannot be allowed to dominate the exercise.
- S.25A is a powerful encouragement towards a clean break, the benefits of which should not be underestimated.
- Pursuant to the sharing principle, the parties are ordinarily entitled to an equal division of the marital assets, whilst non-marital assets are ordinarily to be retained by the party to whom they belong, absent good reason to the contrary. This has alternatively been expressed by stating that the sharing principle applies with force to matrimonial property but does not apply, or applies with significantly less force, to non-matrimonial property. In practice, needs will generally be the only justification for a spouse pursuing a claim against non-marital assets.
- Because the respondent has not made any financial disclosure whatsoever, I must consider what if any adverse inferences I can reasonably and properly draw concerning his financial resources, as was forewarned by Peel J in his 14 May 2024 order – see ¶16 above. The court's duty to consider drawing adverse inferences can be traced back to the decision of Sachs J in J v J [1955] P 215, in which he stated:
"In cases of this kind, where the duty of disclosure comes to lie on a husband; where a husband has – and his wife has not – detailed knowledge of his complex affairs; where a husband is fully capable of explaining and has had opportunity to explain, those affairs, and where he seeks to minimise the wife's claim, that husband can hardly complain if, when he leaves gaps in the court's knowledge, the court does not draw inferences in his favour. On the contrary, when he leaves a gap in such a state that two alternative inferences may be drawn, the court will normally draw the less favourable inference – especially where it seems likely that his able legal advisers would have hastened to put forward affirmatively any facts, had they existed, establishing the more favourable alternative. The obligation of the husband is to be full, frank and clear in that disclosure. Any shortcomings of the husband from the requisite standard can and normally should be visited at least by the court drawing inferences against the husband on matters the subject of the shortcomings insofar as such inferences can be properly be drawn."
- In the Court of Appeal case of Moher v Moher [2019] EWCA Civ 1482, Moylan LJ stated as follows:
[86] My broad conclusions as to the approach the court should take when dealing with non-disclosure are as follows. They are broad because, as I have sought to emphasise, non-disclosure can take a variety of forms and arise in a variety of circumstances from the very general to the very specific. My remarks are focused on the former, namely a broad failure to comply with the disclosure obligations in respect of a party's financial resources, rather than the latter.
[87] (i) It is clearly appropriate that generally, as required by s 25 of the 1973 Act, the court should seek to determine the extent of the financial resources of the non-disclosing party.
[88] (ii) When undertaking this task the court will, obviously, be entitled to draw such adverse inferences as are justified having regard to the nature and extent of the party's failure to engage properly with the proceedings. However, this does not require the court to engage in a disproportionate enquiry. Nor, as Lord Sumption said, should the court 'engage in pure speculation'. As Otton LJ said in Baker v Baker, inferences must be 'properly drawn and reasonable'. This was reiterated by Lady Hale in Prest v Petrodel Resources Ltd [2013] UKSC 34, [2013] 2 AC 415, [2013] 2 FLR 732, at para [85]:
'… the court is entitled to draw such inferences as can properly be drawn from all the available material, including what has been disclosed, judicial experience of what is likely to be being concealed and the inherent probabilities, in deciding what the facts are.'
[89] (iii) This does not mean, contrary to Mr Molyneux's submission, that the court is required to make a specific determination either as to a figure or a bracket. There will be cases where this exercise will not be possible because, the manner in which a party has failed to comply with their disclosure obligations, means that the court is 'unable to quantify the extent of his undisclosed resources', to repeat what Wilson LJ said in Behzadi v Behzadi.
[90] (iv) How does this fit within the application of the principles of need and sharing? The answer, in my view, is that, when faced with uncertainty consequent on one party's non-disclosure and when considering what Lady Hale and Lord Sumption called 'the inherent probabilities' the court is entitled, in appropriate cases, to infer that the resources are sufficient or are such that the proposed award does represent a fair outcome. This is, effectively, what Munby J did in both Al-Khatib v Masry and Ben Hashem v Al Shayif and, in my view, it is a legitimate approach. In that respect I would not endorse what Mostyn J said in NG v SG (Appeal: Non-Disclosure) [2011] EWHC 3270 (Fam), [2012] 1 FLR 1211, at para [16](vii).
[91] This approach is both necessary and justified to limit the scope for, what Butler-Sloss LJ accepted could otherwise be, a 'cheat's charter'. As Thorpe J said in F v F (Divorce: Insolvency: Annulment of Bankruptcy Order) [1994] 1 FLR 359, although not the court's intention, better an order which may be unfair to the non-disclosing party than an order which is unfair to the other party. This does not mean, as Mostyn J said in NG v SG, at para [7], that the court should jump to conclusions as to the extent of the undisclosed wealth simply because of some non-disclosure. It reflects, as he said at para [16](viii), that the court must be astute to ensure that the non-discloser does not obtain a better outcome than that which would have been ordered if they had complied with their disclosure obligations.
- In Ditchfield v Ditchfield [2023] EWHC 2303 (Fam), Peel J said at ¶15:
The potential consequences of failure to disclose have been clearly set out in a series of cases summarised in Moher v Moher [2019] EWCA Civ 1482, [2020] Fam 160, [2020] 1 FLR 225. The law is clear. The court is entitled, in the absence of full and frank disclosure, to draw adverse conclusions where appropriate and to the degree of specificity or generality deemed fit. A non-disclosing party cannot complain if the lack of disclosure leads the court to make an order which by necessity is based on less secure foundations than the court would wish; that is the fault of the miscreant party. As Thorpe J (as he then was) said in F v F (Divorce: Insolvency: Annulment of Bankruptcy Order) [1994] 1 FLR 359, at 367:
'… if in consequence the obscurity of my final vision results in an order that is unfair to [the husband] it is better that than that I should be drawn into making an order that is unfair to the wife.'
- In Hersman v De Verchere [2024] EWHC 905 (Fam), Moor J stated, at ¶25:
The second point, however, is that I do not have the benefit of any up to date evidence from the Wife. Mr Amos KC, who again appears on behalf of the Husband, has not had the chance to cross-examine her as to her earlier statement or what has happened since then. I have already made it clear that this is deliberate on her part. She could easily have attended by video link and I am clear that she has the resources to be represented if she wished to instruct a lawyer. In these circumstances, I am entitled to draw adverse inferences against her, but this does not mean I can draw any inference I like. An inference must be properly drawn.
- Mr Perrins and Ms Hibbert helpfully identified a number of other reported cases in which adverse inferences were drawn, such as: A v A [2012] All ER (D) 108 (Dec), per Bodey J; XO v YO & Anor [2022] EWFC 114, per HHJ Hess; CC v LC [2023] EWFC 52, per HHJ Wildblood KC; and Dickason v Dickason [2024] EWFC 285 (B), per HHJ Sweeney.
The Parties' Minor Child
- [Child B] is the only minor child of the parties, who is currently in the sole care of and who for practical purposes is the emotional, physical and financial responsibility of the applicant alone. In considering his welfare, I take particular note of his age, and his current educational needs as well as his future aspirations.
The Parties' Financial Resources
- The applicant's financial resources, as presented by her in her s.25 statement, are:
40.1. debts totalling c.£(25,000);
40.2. income from benefits for herself and her two children;
40.3. although W is a self-employed nutritionist, she does not currently make any profit from that work.
- The respondent has made no disclosure of his resources at all. In her evidence, the applicant has presented the following assets which she asks the court to infer are owned by the respondent:
41.1. Apartment [1], Jakarta – this is a property in Jakarta, where the applicant and respondent first lived in 2003 when they were married. The applicant's evidence is that it had been acquired in the respondent's name specifically for him and applicant as his wife. In her oral evidence, she explained that when she first arrived in Indonesia having married the respondent, her parents in law were also residing in this property whilst their ancestral home was renovated. However, her mother-in-law preferred this property and so, after about a year, she and the respondent moved to the ancestral property as their home for the next eight years or so. However, it is her understanding that this property remains in the respondent's sole ownership. The applicant estimates it to be worth US$5,000,000, based upon a conversation she overheard in 2008, from which she understood it had been valued at US$3.5 million for security purposes, and a more recent conversation with a neighbour who has an apartment in the same location.
41.2. Flats [2 and 3 Apartments B], Jakarta – The applicant's evidence is that this is the property where she and the respondent and their children lived during the marriage from around 2010 to the separation in 2016. She described how the two properties were bought separately and then joined together. They benefit from the use of an outdoor swimming pool, indoor gymnasium with sauna and steam room, with underground parking for four cars. The applicant's evidence was that although the two apartments had been joined together to form a large family home, she and the respondent had discussed passing them on to their two children as separate dwellings in due course. She also described how she understood that the second apartment, purchased in 2013, had been purchased with funds provided by her father by way of a deferred dowry (see below). It appears from a translated version of a judgment given by the Indonesian Court in July 2023 – appended to the applicant's affidavit of February 2024 – that the respondent applied to that court for a declaration, which was granted, that these apartments are inherited assets and therefore not assets held jointly with, or to be shared in any way with, the applicant. The respondent's application seems to me to amount to a positive assertion of ownership by the respondent. He also used the address of one of these apartments as his current residential address in his court application in 2023. The applicant estimates that together they are worth around US$6,000,000, based upon her conversation with a friend who owns a similar but slightly smaller single apartment in the same building which was said to be worth around US$3 million.
41.3. Villa [C] – the applicant states that this is a holiday home comprising a 6-bedroom villa with ensuite bathrooms and dressing rooms, a large tv room, an indoor prayer room, office and library, indoor bar, owners' kitchen with separate staff quarters for 6 staff and kitchen, an outdoor swimming pool with jacuzzi, a guesthouse and ensuite with massage room, sauna and steam rooms, a games room, outdoor tennis court, and large grounds with a park area, security guard, and several gardeners and parking area for 10 cars. In her oral evidence she clarified that the property was purchased before she married the respondent and her understanding was that it was originally part of a company. It was used as a family holiday home by the applicant, respondent and the children who would travel there every weekend, returning after prayers on Monday morning. The applicant stated that other members of the wider family also used it on occasions and indeed had their own separate rooms within the property. It is where the applicant and respondent had a Hindu wedding celebration in Indonesia in 2003. The applicant recalls being told by the respondent's business partner that the property had been transferred to the respondent. Her evidence is that the property is owned by the respondent. In her affidavit of February 2024 she estimated that it is worth around US$15,000,000, based upon internet research that she undertook with her elder son. However, in her s.25 statement in December 2024, she estimated its value to be US$20,000,000. She explained in oral evidence that having spoken to a family friend she was concerned that she had significantly underestimated its value in February 2024. But Mr Perrins confirmed that, for today's purposes, she relies on the lower valuation of US$15,000,000, so as not to overstate her case
41.4. Villa [D] – The applicant's evidence is that this is a holiday villa in South Bali purchased by the respondent during the marriage and used by the family during vacations. She stated that it was hers and the respondent's joint intention to give this property to their children in due course. She has described the villa as comprising 6 bedrooms with ensuite bathrooms and dressing rooms, 2 living rooms, dining room, a swimming pool with jacuzzi and shower room, indoor gym, prayers room, indoor cinema area with attached bathroom, with staff including a butler, housekeeper, 24-hour security guard and gardeners. I have been shown photographs of the property in its current condition from a website through which it is rented out. I have located the same property on booking.com and seen that it is an exceptionally large, high specification, luxury property. The applicant believes that it is worth around US$12,000,000, which she says is a figure that she has estimated based upon internet research conducted by her and her elder son, looking at local land and property values, depending on the size of the property and taking build costs into account. The applicant stated in oral evidence that she spoke to a friend who owned a similar property and that, as a result, she thought she had underestimated its current value, which is probably US$20,000,000, as she stated in her s.25 statement. However, for today's purposes I am told by Mr Perrins that she is relying on the more conservative figure of US$12,000,000. This takes account of the applicant's understanding that the property has recently been renovated and extended which may account for the higher figure in the s.25 statement.
41.5. US$20,000,000 in bank accounts in Indonesia, India, Singapore, China, the UAE and Switzerland; two of the banks (i.e. those with UK branches) which the applicant believed held accounts in the respondent's name were made the subject of non-party disclosure orders made by Francis J on 22 February 2024. Both the banks replied that the respondent held no accounts with them. The applicant's evidence regarding the other accounts was that she had overheard the respondent and his business partner, Mr Singh, referring to those banks in various conversations which took place during the marriage. The applicant was unable to state whether or not the context in which she had overheard references to these banks implied that they held personal or business accounts. Peel J made 16 further non-party disclosure orders against these foreign banks on 14 May 2024 and the 4 banks that have responded have each declined to respond to or comply with such an order of the English court. I am concerned that the evidential basis for an aggregate bank balance of US$20 million is slim. However, in drawing any adverse inferences about non-disclosed accounts, I am permitted to rely upon judicial experience of what is likely to be being concealed and the inherent probabilities.
41.6. US$20,000,000 worth of Cryptocurrency, the figure of which, the applicant stated in oral evidence, is based upon her recollection of a historic statement of such a holding, assuming no withdrawals in the meantime and using the current exchange rate.
41.7. Shares in [Z Company] (a subsidiary of [Y Company]) of unknown value. The applicant's evidence included a narrative history of the respondent's father, H. M. Mahtani, which referred to him having entered into a joint venture with [Y Company] in 1991 and being on the Board of Directors. I was also shown a shareholders resolution dated May 2004 which recorded the approval of the transfer of shares (in what appeared to be a related company called [X Company] Indonesia) to the respondent. The applicant also produced a document which appeared to be a consent form which the applicant stated she signed at the same time under duress. In her oral evidence, the applicant explained that, during the marriage in about 2010-12, she was told by someone within [Y Company] that, as a result of a family rift, shares had been transferred to the respondent which would result in him "receiving US$6-7,000 per month" and "going on family trips". I was also shown a web-site for another company, [W Company – see below – which features the respondent as one of two "key people", and which identified that company as being part of the [V] Group of which [Z Company] is also a part. The response to Peel J's non-party-disclosure order against [Y Company] stated:
"In any event and despite the letter does not represent formal service we can inform that we have no records of the person in question being a registered share holder in [U Company] which is the listed company in charge of the [Y Company] Group.
Should the person hold shares through a nominee bank or a pension fund you need to address any such entities as we will not be able to identify it."
Drawing any adverse inference in this regard, I refer again to my permissible reliance upon judicial experience of what is likely to be being concealed and the inherent probabilities in the light of all the available material.
41.8. [W Company]. It is the applicant's case that the respondent is the owner and director of [W Company], a forestry product company, and that the respondent owns the building where [W Company] has its headquarters. I was shown a copy of the web-site from the company. Having looked up the URL, I note that the business appears to be currently active and that the respondent, whom I recognise from other evidence in the bundle, features prominently on the website. Furthermore, the contact e-mail given on the website is mahtani@[Y Company]. The applicant estimates the value of the company/building at US$15,000,000.
41.9. [T Company] – it is the applicant's case that the respondent is the director of [T Company], a company specializing in the production of iron and steel, textiles and other industrial chemicals. She states that the respondent is a 50% shareholder in the company, which she believes to be worth around $40,000,000. I have located the company on the internet but have no other information, save the reference to it as part of the [V] Group on the [W Company] website.
41.10. [S Company] – the applicant's evidence is that this is a coconut product production company worth $20,000,000, of which H is a 50% shareholder. I have found details of such a company on the internet and note the reference to it as part of the [V] Group on the [W Company] website.
41.11. [R Company], - the applicant states that the respondent is the owner and director of [R Company], an overseas manufacturing and wholesale supplier in Indonesia that exports products to [Q Company]. She has stated her belief that the company is worth around US$15,000,000. I have no further details regarding this company, save that it is referred to as being part of the [V] Group on the [W Company] website.
The Dowry
- It is the applicant's case that, although it was agreed between her parents and the respondent parents before the marriage that there would be no dowry, after they were married her parents-in-law began to apply pressure upon her to pay a dowry. She told me that the pressure came in the form of her being told that she had to be a compliant and obedient daughter-in-law and that her opinion carried no weight because her parents had not paid a dowry. She told me that this pressure coincided with the time when the respondent began to treat her aggressively. She told me that she told her father about the way she was being treated and why and, unbeknown to her at the time, she believes that her father arranged to make a dowry payment of around US$500,000. I have been shown [a Bank C] saving certificate in the sum of IDR 5,500,000,000 (c.£336,000 at the then exchange rate) which the applicant understands is the dowry paid by her father, held for herself and the respondent. It was her understanding, gleaned from a conversation with the respondent's business partner, Mr Singh, that this money was put towards the purchase of the second of the two [flats at Apartments B] and/or for the work in joining the two apartments together. In the absence of any evidence to the contrary, or any rebuttal of the applicant's case, and bearing in mind that the respondent was put on notice of the applicant's case that a dowry had been paid when she served her Form E over a year ago, and was provided with the details in her Affidavit served in February 20124, I find that a dowry was paid in 2009 in the sum of IDR 5,500,000,000.
The Private Investigator
- I also note that the applicant relies on a series of screen shots which show a text conversation between two people whom she told me in oral evidence are an un-named friend of hers and a private investigator instructed by her friend on her behalf. The applicant explained that the private investigator had access to private information held within at least one bank. The investigator claimed to know that the respondent's nephew (the son of his sister) had received around US$43m into accounts in Australia, Switzerland and Singapore in his name and the name of "his company", much of which was received while he was a student at [X] University. The applicant was concerned that these funds could not have been genuinely owned by the respondent's nephew and were in fact the respondent's funds that he was attempting to put beyond her reach and out of sight of the court by placing them in the nephew's name. Whilst I understand why the applicant took steps to indirectly instruct a private investigator, I can neither condone the steps she took nor place any reliance on their product. To do so would be contrary to the established principles in relation to private and confidential information and involve pure speculation. I disregard that evidence entirely.
Adverse Inferences
- In deciding what if any adverse inferences I may draw concerning the financial resources of the respondent, I remind myself again of the words of Lady Hale, quoted by Moylan LJ above:
'… the court is entitled to draw such inferences as can properly be drawn from all the available material, including what has been disclosed, judicial experience of what is likely to be being concealed and the inherent probabilities, in deciding what the facts are.'
- Surveying all the available material, there are a number of matters which enable me start from a position of at least some information. This means that I can draw proper inferences which are not based upon "pure speculation", as proscribed by Lord Sumption. I must nonetheless be careful to draw only such inferences as properly drawn and to the degree of specificity or generality deemed fit.
- Mr Perrins draws my attention to various, inevitably uncontested, aspects of the parties' standard of living during the marriage to inform the reasonableness of the adverse inferences I am asked to draw, including:
46.1. living in luxury apartments owned by the respondent with access to amenities such as swimming pools, gyms, saunas, steam rooms and tennis courts;
46.2. taking trips every weekend to their luxury holiday home in [Villa C];
46.3. travelling during all holidays except summer to their holiday home [at Villa D] in South Bali;
46.4. travelling every summer to London with the children;
46.5. the applicant was not employed during the parties' marriage;
46.6. the respondent met all of the applicant's needs by providing her with an allowance of £1,500 pm and an American Express credit card which he paid;
46.7. the assistance of staff including a live-in nanny, live-in cook, daily cleaner, and separate drivers for the applicant and respondent;
46.8. the applicant had a Mercedes, then an Alphard family van and then a Mitsubishi Jeep;
46.9. the parties and the children regularly ate out, with the applicant having lunch out with friends 3-4 times per week;
46.10. the children attended exclusive private schools in Indonesia;
46.11. the applicant and respondent travelled together on the respondent's work trips to New York, Paris, India, Singapore and Hong Kong.
- I also rely upon the applicant's evidence in relation to the respondent's business dealings during the marriage, as well as the fact that, as his parents' only son, he is the heir to his father's business interests.
- It was asserted on behalf of the applicant that it would be reasonable to draw the inference that the respondent's assets totalled c.£112 million (gross) as follows:
- I was further invited by Mr Perrins to apply a 10% discount for notional costs of realisation, giving a net total of c.£101 million. It was submitted on behalf of the applicant that this is a proper and reasonable inference to draw, in the absence of any evidence or rebuttal whatsoever from the respondent. I was, in effect, invited to adopt the rationale that the respondent "would have hastened to put forward affirmatively any facts, had they existed, establishing the more favourable alternative".
- Before acceding to that attractive submission, however, I remind myself that I am not required "to make a specific determination either as to a figure or a bracket" and that there are cases in which "the court is 'unable to quantify the extent of his undisclosed resources'". I am permitted to draw inferences "to the degree of specificity or generality deemed fit" and, where appropriate, not to alight of a specific figure, but instead "to infer that the resources are sufficient or are such that the proposed award does represent a fair outcome". In doing so, I "must be astute to ensure that the non-discloser does not obtain a better outcome than that which would have been ordered if they had complied with their disclosure obligations".
- So, before considering what inferences to draw and to what level of specificity, I remind myself what order is sought by the applicant. She seeks an award of £13.5 million (£13.9 million based on today's FX), based on 50% of the value of the four properties set out above, less 10% notional realisation costs. Mr Perrins, in referring to this as a "quasi-sharing" claim, acknowledges that:
51.1. the property valuations that the applicant relies upon are estimates, but are conservative estimates;
51.2. each of the properties has a clearly matrimonial nature: two were matrimonial homes; two where matrimonial holiday homes; and there was a joint intention to give some of these properties to the parties' children in due course.
51.3. no arguments that the applicant's share should be less than half by dint of the source of the funds used to acquire the properties have been advanced by the respondent; and, in any event, any such arguments would be weak in the light of first category of matrimonialised assets as defined by Wilson LJ in K v L [2011] EWCA Civ 550 as reformulated by Moylan LJ in Standish v Standish [2024] EWCA Civ 567:
"Over time matrimonial property of such value has been acquired as to diminish the significance of the initial contribution by one spouse of non-matrimonial property" (per Wilson LJ in K v L at para 18(a))
"The percentage of the parties' assets (or of an asset), which were or which might be said to comprise or reflect the product of non-marital endeavour, is not sufficiently significant to justify an evidential investigation and/or an other than equal division of the wealth" (per Moylan LJ in Standish at para 163).
51.4. the applicant is not seeking any "share" of the respondent's business assets because she is simply unable even to begin to undertake any assessment as to the extent to which their value or any part of it may constitute matrimonial acquest, as opposed to passive growth, in which she may be entitled to share.
- I note at this point that the applicant has been hobbled in her ability to present a more detailed case by the respondent's non-engagement and non-disclosure. Consequently, the extent to which her case is put forward on a more limited or conservative basis as a result seems to me to risk giving in to the "cheat's charter". However, I appreciate that the applicant is, as Mr Perrins submitted, between a rock and hard place: she is seeking a fair outcome but doing so largely in a vacuum in which she is cautious not to overstate her claims. Understandably, she cannot do otherwise.
- In any event, since £13.9m is the height of W's claim and is referable to the four real properties only, I do not believe that I need to risk the speculation that may be required in order draw any unnecessarily specific adverse inference in relation to the totality of his other assets. From judicial experience, I accept that the figure of US$20 million for bank balances would not be inherently unlikely in proportion to the totality of assets at the suggested figure of over US$100 million. I find that the businesses do exist, I find that the respondent is involved in them and is more likely than not to have a significant stake in them, if not to own at least some of them outright. And I find that it is more likely than not that such businesses do have significant value and generate significant income for the respondent. I am nonetheless concerned that the specific valuations of the businesses put forward by the applicant do not appear, on her own admission, to have any factual or analytical basis and are therefore inherently speculative.
- Therefore, I infer and find that:
54.1. the respondent's property resources are as set out above (being c.£27.8 million, net of 10% notional realisation costs); and
54.2. the balance of his other, including corporate, financial resources are sufficient that the highest award sought by the applicant represents an outcome that is not unfair to the respondent.
Financial Needs
- It follows from the above that I need only concern myself with the specific financial needs of the applicant, the respondent having more than sufficient financial resources to meet his own financial needs.
- I consider the applicant's financial needs in the context of the standard of living that the parties jointly enjoyed during the marriage, the ages of the parties, the duration of the marriage and the applicant's health.
- I have considered the housing need of the applicant and the children when with her. I have been provided with a range of housing particulars in the area, in which the applicant and the children currently live. I accept the applicant's argument that it is reasonable for her to stay living in that location, subject to the cost of suitable property. The particulars that I have seen range from £3.25 million to £5.75 million. Bearing in mind the standard and value of the properties in which the family lived in Indonesia, as I have found above, I consider this to be a reasonable bracket. Adopting a mid-point of the range, adding stamp duty land tax, purchase costs and a budget for moving, redecoration, furnishing etc., I consider that a lump sum of c.£5.25 million is required to meet the applicant's housing needs.
- I accept that the applicant needs a car. I have been provided with a range of car costs between £43,000 and £143,000. Again, bearing in mind the standard of car that she used to drive during the marriage, I find that a car costing £70,000 will meet her needs.
- I accept that she needs £25,200 to repay her current liabilities, all of which I accept as real and hard debts.
- Whilst the elder child, [Child A], has begun university and is funding it with student loans, I do not consider that he should have to do that bearing in mind the level of wealth in this family. The applicant told me, and I accept, that it is her elder son's intention to complete a three-year undergraduate degree and then a one-year Master's degree. She indicated that her younger son, [Child B], has a similar intention. I consider that meeting their tuition fees in full is a reasonable need. That would total £77,000. I accept the applicant's evidence that it is reasonable for her to budget £17,500 per child per year to cover their university accommodation and living costs. This would total £140,000 for both children, each undertaking four years of further education.
- I accept that, by reason of her age and health and the fact that the applicant did not work in paid employment during the marriage and has not done so since, it would not be reasonable to attribute a substantive earning capacity to her now or in the foreseeable future. I acknowledge that she has undertaken some self-employed work as a nutritionist and that this has not produced a profit to date. If it does so in future, I do not expect it to be a significant sum and will not materially alter her financial position.
- The applicant has produced a budget in her Form E which was updated in her section 25 statement. In her oral evidence she explained that she had revisited her budget in her section 25 statement and that the differences were a result of further reflection and consideration. Mr Perrins has helpfully extracted from the full budget those items which would not be required were the capital provision referred to above to be made (e.g. rent, debt repayment). I was also informed by Mr Perrins that the issue of building and contents insurance and property maintenance had been overlooked, and I take judicial notice of the suggested sum of £1,000 per month in this regard, which is if anything likely to be an underestimate. W's budget included specific items in relation to the children that she said she would continue to incur while they attend university and in the first few years after they graduate. She calculated these sums to total £1,100 per child per month. I accept that the sums are legitimate needs for the duration of the children's further education, but not beyond that.
- Using Capitalise, I consider that the applicant's income needs could be met with a lump sum of c.£1.84 million on the basis that provision is made for her full life expectancy, or alternatively with a lump sum of c.£1.21 million on the basis that, from the age of 70, she could be expected to downsize her property and use the capital released to meet her income needs thereafter.
- I therefore calculate that the applicant's financial needs would be met with a lump sum of £7.4 million, using the higher whole-life Capitalise figure, or £6.8 million on the lower 20 year term calculation.
Conduct
- The applicant does not explicitly rely on "conduct" under s.25(2)(g). However, I have been referred in the evidence to an email received by the applicant in February 2024 in which an alleged "whistleblower" informed the applicant that he was aware, from "texts and call logs as well as email exchanges and a map drawn up by [the respondent]" of which he appeared to have knowledge, that the respondent had offered a contract killer £50,000 to have the applicant killed by "poison or accident". This was understandably extremely concerning to the applicant who immediately and properly informed the police. She has not, quite properly, responded to the alleged whistleblower to obtain further details of the allegation. I do not make any findings with regard to the alleged contract to kill, but note the applicant's genuine fear, expressed to me in her oral evidence, that the respondent will stop at nothing to avoid meeting any liability towards her. This also fuels her fear of ever returning to Indonesia, which I accept is genuine.
Enforceability
- It is acknowledged by Mr Perrins that enforcement of any order I make is likely to be necessary, and potentially challenging. Mr Perrins submitted that this potential impediment should not dissuade me from making a substantive final order. It does not. The challenge presented to the applicant is not the innocent, indirect consequence of, for example, the illiquidity or inaccessibility of assets. It is a result of a deliberate strategy of the respondent to frustrate her claims. In these circumstances, it seems to me that I would be giving in to a cheat's charter if I were to abstain from making an order in deference to the potential, even likely, effect of the deliberately obstructive conduct of the respondent.
Decision
- I consider that the applicant has a fair sharing claim to 50% of the value of the respondent's property interests, which I have assessed at £13.9 million. Since this sum is higher than her needs claim of £6.8-7.4 million, I assess her award in that sum. As I have said, I have drawn adverse inferences against the respondent such that I do not consider that this award to the applicant is unfair to the respondent. It leaves him with the other 50% of the value of the four properties and 100% of the value of all his other assets, whatever they may be and whatever value they may have, and despite that fact that the applicant may well have a claim to some marital acquest included in their value.
- Whilst I am satisfied that this outcome is not unfair to the respondent, I retain some residual concern that it may nonetheless be unfair to the applicant, who, because of the respondent's obstructive non-engagement in these proceedings and his comprehensive non-disclosure, has been unable to make what may be a legitimate claim to a matrimonial element of the value of his other assets. However, I have concluded that although I can draw adverse inferences, I cannot make an award based upon any such potential claims as to do so would require impermissible speculation. I therefore consider that the award I am making is as fair as possible in all the circumstances.
Worldwide Freezing Order
- Mr Perrins submits that I should continue the worldwide freezing order made by Francis J in February 2024 and continued by Peel J in May 2024, pending implementation of the substantive financial remedies order I make. I have been referred to the cases of HC v FW (Financial Remedies: Assessment of General and Special Needs) [2017] EWHC 3162 (Fam) and Akhmedova v Akhmedov and Others [2020] EWHC 2257 (Fam) in support of the proposition that there is jurisdiction to make such an order to support the effective implementation and/or enforcement of a final financial remedies order.
- First, when the worldwide freezing order was originally made by Francis J, he was referred to the case of L v K (Freezing Orders: Safeguards: Standard Examples) [2013] EWHC 1735 as well as the more recent cases of J v H [2022] EWFC 133 and AO v LA [2023] EWHC 83 (Fam). It is clear that Francis J on that occasion, and Peel J at the subsequent hearing in May 20204 at which he continued the worldwide freezing order until further notice, were both satisfied that the threshold test of L v K was met, namely that the claimant must show a real risk, judged objectively, that a future judgment would not be met because of an unjustified dissipation of assets (i.e. putting the assets out of reach of a judgment whether by concealment or transfer) and that such risk must be established by solid evidence; mere inference or generalised assertion being insufficient.
- Now that I have determined the applicant's award, I must consider whether the position changed. I bear in mind the following factors:
71.1. the respondent's complete concealment of assets has continued and been compounded by his ongoing and further breaches of various court orders for financial disclosure and attendance at court;
71.2. the respondent's misrepresentation to the local court in Indonesia is ongoing: as I found in November 2023, he misrepresented the fact that he did not know the whereabouts of the applicant in 2017 and was still doing so in 2023 – see ¶¶70-75 of my earlier judgment; there is no evidence that he has corrected that position.
- In the Akhmedova case, Knowles J was considering the extension of existing freezing orders after a judgment and final order and in that context she stated (at ¶18) that:
"…the question I ought to ask myself is whether there is a real risk that the judgments and orders in the wife's favour will go unsatisfied if the relief is not granted."
- I ask myself a similar question now. I find that the threshold, found by Francis J and Peel J to have been met in February and May 2024 respectively, is still met now that I have determined the applicant's claims. There remains a real risk that my judgment and order will go unsatisfied if such an order is not made. Of course, I am aware that it may be said that there is a real risk of such even if the worldwide freezing order is indeed made, but I do not consider that to be right question. If a genuine intention to flout a worldwide freezing order could justify it not being made in the first place, that would surely give unfair force to a cheat's charter. I therefore find that it is necessary and proportionate for the worldwide freezing order to remain in force pending payment in full of the lump sum that I have awarded to the applicant.
Costs
- Pursuant to FPR 2010 r.28.1 the court may at any time make such order as to costs as it thinks just. FPR 2010 r. 28.2 provides that the "costs follow the event" rule is disapplied in family proceedings. Pursuant to FPR 2010 r.28.3(5), the general rule in financial remedy proceedings is that the court will not make an order requiring one party to pay the costs of another party (i.e. the no order principle). However, FPR 2010 r.28.3(6) states that the court may make an order requiring one party to pay the costs of another party at any stage of the proceedings where it considers it appropriate to do so because of the conduct of a party in relation to the proceedings (whether before or during them). The factors to which the court must have regard in deciding what order (if any) to make under paragraph (6), are set out in FPR 2010 r.28.3(7) as follows:
(a) any failure by a party to comply with these rules, any order of the court of any practice direction which the court considers relevant;
(b) any open offer to settle made by a party;
(c) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue;
(d) the manner in which a party has pursued or responded to the application or a particular allegation or issue;
(e) any other aspect of a party's conduct in relation to proceedings which the court considers relevant; and
(f) the financial effect on the parties of any costs order.
- It is submitted by Mr Perrins that the respondent's comprehensive breach of every court order made against him as to financial disclosure, attendance at court (whether remotely or in person) and regardless of whether or not a penal notice was attached (as was the case on more than one occasion) clearly surpasses the high threshold of litigation conduct for a costs order and he seeks an order that the respondent pay all the applicant's cost on an indemnity basis.
- Whilst it may be said, as I suggested to Mr Perrins during his closing submissions, that even if the respondent had been completely compliant and the case had reached an early consensual outcome, it would have cost the applicant something, his response was that in such circumstances the respondent would have been paying the applicant's costs as she had no money or she would have obtained an LSPO – as she in fact did before Roberts J – which would not have had to be repaid.
- I consider that the respondent's litigation conduct sounds under sub-paragraphs (a), (d) and (e) of FPR 2010 r.28.3(7). The extent of his defiant breach of court orders is total, and combined with the impact upon the court's ability to reach a fair outcome and the effect on the applicant of having to conduct the entire case without any information whatsoever from the respondent is such that I find merits a severe costs order against the respondent. I also take into account the respondent's litigation conduct in launching surreptitious parallel financial proceedings against the applicant in Indonesia very shortly after he was made aware of the application she had made in this jurisdiction. As I have already found, he lied to the Indonesian court when he stated, within that application, that he did not know the whereabouts of the applicant or have any means of contacting her.
- I agree with Mr Perrins that the extent of the respondent's litigation conduct merits the strongest censure in terms of costs and I make the order sought: the respondent shall pay the applicant's costs of these proceedings on an indemnity basis.
Interest on Arrears of Maintenance
- In the context of drafting the financial remedies order, an issue arose as to whether interest was payable on the arrears of maintenance pending suit. With regard to the interest point, I was assisted by Mr Perrins and Ms Hibbert's written submissions and have considered the position in the light of TW v TM [2015] EWHC 3054 (Fam), GH v H [2024] EWHC 2869 (Fam), Tobias v Tobias [2018] 1 FLR 616 and The President's Guidance on Allocation of 24 May 2021. In GH v H, Simon Colton KC, sitting as a deputy high court judge, stated as follows, at ¶19-20:
19. After the hearing, however, before I approved the order for sealing, it occurred to me that I might have gone astray in this regard. As noted at paragraph 4 above, the Roberts J Principal Order, under which the arrears had accrued, was headed: 'In the Family Court sitting at the Royal Courts of Justice'. As Mostyn J held in TW & TM (Minors) [2015] EWHC 3054 (Fam), [2016] 2 FLR 1386 at [17]-[19], by reason of s.74(5B) of the County Courts Act 1984 (the '1984 Act') and art.2(4) of the County Courts (Interest on Judgment Debts) Order 1991 (the '1991 Order'), interest does not accrue on orders for periodical payments made in the Family Court. The County Courts (Interest on Judgment Debts) (Amendment) Order 2019 has subsequently amended art.2 of the 1991 Order, but not in a manner which affects the conclusion of Mostyn J.
20. I drew my concerns to the attention of Mr Harvey after the hearing. His response, was to the effect that (i) if the Roberts J Principal Order was indeed made in the Family Court, then he accepted that interest would not have accrued on arrears of spousal maintenance or child maintenance, but (ii) having obtained, after the hearing, a clip of applications and orders made in these proceedings, which he now produced, it appeared that the order was in fact made in the Family Division.
- My view is that the original transfer and allocation of this case, as set out in the order of Recorder Harris at ¶¶5 & 6, was:
5. All proceedings under case numbers 1669-9746-1085-9274 (FR) 1630-3262-5385-3837 (Divorce) (ZZ21D54780) shall be transferred to the Family Court sitting at the Royal Courts of Judge and beard together by the allocated judge.
6. In consultation with Mr Justice Peel all proceedings in this matter shall be allocated to a High Court Judge of the Family Division sitting at the Family Court.
- There is no reference in any order to any transfer to the High Court Family Division, or any allocation to a High Court Judge sitting in the Family Division.
- The only further references to transfer or allocation are to ¶6 of the order of Roberts J in which she remains the allocated judge, the allocation by Peel J to Mr S Trowell KC on 16 October 2023, and Peel J's allocation to me on 14 May 2024. None of these orders transferred the case to the High Court, Family Division.
- I therefore take the view that, despite the headings on all the orders since the transfer by Recorder Harris – including my own – this case has remained in the Family Court sitting at the Royal Courts of Justice. That is consistent with the President's Guidance.
- In those circumstances, and for the reasons set out by Simon Colton KC, it seems to me that interest does not accrue on the arrears of maintenance, and that is my decision.
