Meera Ashish Thakkar (Petitioner) v Ashish Jagdish Thakkar
| Jurisdiction | England & Wales |
| Judge | Mr Justice Moor |
| Judgment Date | 08 June 2016 |
| Neutral Citation | [2016] EWHC 2488 (Fam) |
| Court | Family Division |
| Docket Number | Case No: ZC14D01201 |
| Date | 08 June 2016 |
[2016] EWHC 2488 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Moor
Case No: ZC14D01201
Mr Simon Webster (instructed by Mishcon de Reya LLP) appeared on behalf of the Petitioner
Mr Nicholas Francis QC and Ms Lucy Owens (instructed by Conway & Co) appeared on behalf of the Respondent
This is an application made by the respondent to the divorce petition, Mr Ashish Thakkar to make the decree nisi absolute in this suit. The petitioner is his wife, Mrs Meera Thakkar. She is 33 years of age. He is 35 years of age. They married in Kampala, Uganda on 27 September 2008. They separated on 27 February 2013. The marriage by then was clearly over. On 27 June 2014 the wife petitioned in this jurisdiction for divorce, relying on section 1.2(b) of the Matrimonial Causes Act 1973. On the same day the wife pursued her application for financial means in Form A.
There were negotiations between the solicitors as to the pronouncement of decree nisi and decree absolute. It is clear that from the very beginning that the solicitors of the petitioner, Mrs Thakkar were concerned to attempt to extract an undertaking from Mr Thakkar not to apply for decree absolute until the final determination of her application for financial provision. On 20 August 2014, Mr Thakkar's solicitors indicated that he had no intention "at present" of applying for decree absolute. The negotiations continued and they reached something of a stalemate. Eventually, on 24 March 2015, he gave an undertaking to provide 14 days' notice of his application for decree absolute, as well as a copy of his application and the draft statement upon which he intended to rely, should he make an application. No doubt, mindful of the fact that no financial provision orders could be made until a decree nisi had been pronounced, Mrs Thakkar's solicitors accepted that undertaking and applied for decree nisi. Decree nisi was pronounced for 30 July 2015. She would have been entitled to apply for decree absolute six weeks thereafter but she did not. Indeed, the correspondence makes it absolutely clear that she had no intention of doing so until her financial remedies application had been determined.
Mr Thakkar, however, did apply after the expiration of three months, on 23 December 2015, to make the decree absolute and that is the application that I now have to deal with. The application is heavily contested. Mr Francis QC and Ms Owens, who appear on behalf of the husband, have drawn my attention to the law in relation to these applications. I am of course concerned with section 9(2) of the Matrimonial Causes Act 1973, which states:
"Where a decree of divorce has been granted and no application for it to be made absolute has been made by the party to whom it was granted, then, at any time after the expiration of three months from the earliest date on which that party could have made such an application, the party against whom it was granted may make an application to the court, and on that application the court may exercise any of the powers mentioned in paragraphs (a) to (d) of subsection (1) above."
And (a) to (d) simply say that the court can make the decree absolute or it can rescind the decree or it can require further inquiry or otherwise deal with the case as it thinks fit. It is therefore clear that by virtue of (d) I can refuse to allow the application if I think fit. So that is what the statute says.
Until very recently it was thought that the only authority on the subject was first instance authority, which of course is persuasive on me, but not binding. It has since been discovered that, in fact, the Court of Appeal has made a determination on this issue in a case called Dart v Dart, which is already well-known, having been reported in relation to the then approach to applications for financial provision by wives in cases where the assets are extremely large. In that case, however, the situation was different to the one here. It was different because the petitioner in that case was Mr Dart and he was clearly simply intending to apply at the end of the six weeks to make the decree absolute. Mrs Dart attempted to take pre-emptive steps to stop that, so it was not a strict application pursuant to section 9(2). However, Mr Webster, who appears on behalf of Mrs Thakkar in this case, accepts that I should deal with it on the basis that Dart is the law that I must apply in relation to this application and I therefore do so.
The case of Dart is clear. There is reference to a decision of Brandon LJ in England v England [1980] 10 Fam Law 86 where he said:
"It was contended for the wife on this appeal that there were no circumstances in which the Court had power to delay the making absolute of a decree nisi. I do not accept that contention. It is in my view clear beyond doubt that the Court has the power to do that in the exercise of its inherent jurisdiction where there are special circumstances which may be just that it should be done."
The Court of Appeal, Butler-Sloss LJ (as she then was) goes on to say as follows:
"Consequently one starts with this position, that the husband has the right to a decree absolute after the appropriate period following decree nisi and that period has now elapsed. In the normal course of events he would be able to obtain the decree absolute unless the wife is able to show special circumstances to defer it. At the end of the day it is an exercise of the discretion of the trial judge, but that exercise of discretion weights the granting of the decree absolute against the special circumstances very heavily in favour of the grant. It is not a balancing exercise in the ordinary sense."
So that is the test that I have to apply.
I have to be very careful in this case. I am the trial judge. Nothing I say should be taken as making a finding of fact as to the extremely contentious and disputed issues in this case. It is however clear to me that it is an unusual case. Indeed, I accept Mr Webster's categorisation of it on behalf of Mrs Thakkar as "exceptional". Mrs Thakkar says her husband is a billionaire. She alleges that he runs the Mara Group of companies for his benefit. She says that, in so far as the assets of the Group are held by other people, whether by a foundation or by his mother and sister, they are doing so on his behalf. He denies this fundamentally. His Form E states that he has net assets of £445,532 and, he says, it is clear that the Mara Group is held in the British Virgin Islands by his mother and sister.
Any husband has a duty of full and frank disclosure. Mrs Thakkar in this case says he has not complied with that duty. She has drawn my attention to a number of replies that she alleges are not frank. She goes on to say, rhetorically, how can she show prejudice and satisfy the Dart test if her husband has not given a full and...
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