Conflict of laws – Ancillary relief – Divorce – Foreign judgements

Agbaje (respondent) v Akinnoye-Agbaje (FC) (appellant): SC (Lords Phillips (president), Rodger, Collins, Kerr, Lady Hale): 10 March 2010

The appellant wife (W) appealed against a decision ([2009] EWCA Civ 1, [2009] 3 WLR 835) dismissing her claim for financial relief under part III of the Matrimonial and Family Proceedings Act 1984 following an overseas divorce from the respondent husband (H).

H had been granted a divorce in Nigeria. The couple had been married for 38 years and had dual British and Nigerian nationality. Their children were born and, with the exception of the youngest child, educated in England. H and W had spent the majority of their married life in Nigeria, but had a house in England in which W was living when the divorce was granted. The Nigerian court awarded her a life interest in a property the couple owned in Nigeria and a lump sum equivalent to £21,000. W later obtained leave to apply for financial relief under part III of the 1984 act. The High Court ordered that W should receive a lump sum equal to 65% of the proceeds of the sale of the English property. The award represented 39% of the couple’s total assets. H appealed. The Court of Appeal allowed his appeal on the basis that the judge had not: (i) expressly addressed the factors in sections 16(2)(d), 16(2)(e) and 16(2)(f) when considering whether the order should be made; (ii) given sufficient weight to the parties’ connection with Nigeria; (iii) addressed the need for respect and deference to be paid to the Nigerian court. The Supreme Court had to determine: (i) to what issue the matters listed in section 16(2) were directed; (ii) what role forum non conveniens principles or comity had to play in the exercise of the discretion under section 16; (iii) whether an applicant had to show exceptional circumstances, hardship or serious injustice before an order could be made; (iv) whether the court was limited to making an award of the ‘minimum extent necessary to remedy the injustice’; (v) what matters the court should have regard to, and in what way, when exercising its powers under section 17.

Held: (1) The factors in section 16(2) were not relevant when considering whether to make an order under section 17; they were matters to which regard must be had in considering whether ‘it would be appropriate for such an order to be made by a court in England and Wales’ under section 16(1).

(2) Section 16 did not impose a statutory forum non conveniens test. The whole basis of part III was that it might be appropriate for two jurisdictions to be involved, one for the divorce and one for ancillary relief. The factors in section 16(2) were directed to the question of whether it would be appropriate for an order to be made by an English court when there had already been proceedings in a foreign country, including proceedings in which financial provision had been made. However, section 16 did reflect the principles of comity as between competent courts, Holmes v Holmes [1989] Fam 47 CA (Civ Div) considered.

(3) Part III contained no express reference to hardship, injustice or exceptionality. Although both hardship and injustice were relevant factors for the court to consider under sections 16 and 18, they were not preconditions, Jordan v Jordan [2000] 1 WLR 210 CA (Civ Div) applied.

(4) There was no statutory basis for the principle that the English court was limited to making an order that represented the minimum necessary to remedy the injustice. However, it was not the intention of the legislation to allow a ‘top-up’ of the foreign award so as to equate with an English award. Only in cases where there was a strong English connection was it appropriate to ask what provision would have been made had the divorce been granted in England.

(5) Part III had to be applied in light of the legislative purpose, namely the alleviation of the adverse consequences of no, or inadequate, financial provision being made by a foreign court in a situation where there were substantial connections with England. The amount of financial provision awarded under section 17 would depend on all the circumstances of the case and the following general principles. First, primary consideration had to be given to the welfare of any children of the marriage. Second, it was never appropriate to make an order which gave the claimant more than she or he would have been awarded had all proceedings taken place in England and Wales. Third, where possible the order should have the result that provision was made for the reasonable needs of each spouse. The reasons why it was appropriate for an order to be made in England were among the circumstances to be taken into account in deciding what order should be made. Where the English connections of the case were very strong, there might be no reason why the application should not be treated as if it were made in purely English proceedings; however, the full procedure for granting ancillary relief after an English divorce would not apply.

(6) The English connections in the instant case were substantial and the judge plainly took the relevant matters in section 16(2) into account. There was a very large disparity between what H and W received in Nigeria such as to create real hardship and a serious injustice. The Court of Appeal had no basis to interfere with the exercise of discretion and the order of the High Court judge was restored.

Appeal allowed.

Nigel Dyer QC, Eleanor Harris (instructed by Knox & Co) for the appellant; Timothy Scott QC, Peter Mitchell, Amber Sheridan (instructed by Tucker Turner Kingsley Wood & Co) for the respondent.