11 March 2010

A second bite of the cherry after a foreign divorce


It was the first time the Justices of the Supreme Court considered the circumstances in which a spouse may seek an additional financial award in England where the divorce has already been concluded elsewhere.

The governing statute, Part III of the Matrimonial and Family Proceedings Act 1984 (“the MFPA”), provides that where a marriage has been dissolved in a foreign country and the divorce is recognised as valid in England and Wales, either spouse may apply to the English Court for an order for financial relief.

Facts

Mr and Mrs Agbaje were married for 38 years. Both were of Nigerian origin, but they had acquired British citizenship in 1972. All five of their children were born (and all but one educated) in England. The parties established their home and their life mainly in Nigeria, but had during the marriage owned a home in England. The parties separated in 1999 and Mrs Agbaje moved to England.

In 2003, Mr Agbaje began divorce proceedings in Nigeria. Mrs Agbaje issued divorce proceedings in England but sought financial provision in Nigeria. Mr Agbaje was granted a divorce and ordered to settle in favour of his wife for her life a property held in Nigeria (worth £83,000) and a lump sum of 5 million Naira (about £21,000) as maintenance for life. All other financial claims on behalf of Mrs Agbaje’s were dismissed.

A few weeks after the divorce was concluded in Nigeria, Mrs Agbaje applied for and was successful in obtaining the English Court’s permission to apply for financial relief under the MFPA on the basis of the “very considerable discrepancy” between the “value of the matrimonial assets” and the “very modest provision” made for the wife after a 38 year marriage.

On hearing Mrs Agbaje’s application the Judge concluded that her primary need was for a home and ordered a property in London in the husband’s sole name to be sold and 65% of the proceeds to be paid over to Mrs Agbaje (equivalent to £275,000).

In determining whether to make an order under the MFPA the Court must have regard to all the circumstances of the case including the parties’ connection with England and Wales (or any other country) and the country in which the marriage was dissolved; any rights to apply for financial provision under the law of any country outside England and Wales as well as any financial benefit already received; the availability of a property in England and Wales in respect of which an order could be made; the likelihood of enforceability of any order made and the length of time elapsed since the date of the divorce.


Court of Appeal decision

Mr Agbaje appealed. He argued that his wife had undertaken blatant forum shopping and that she was seeking a second bite at the cherry. Mrs Agbaje argued that she would suffer a very significant risk of real hardship if the Court refused to make further financial provision. The Court of Appeal set aside the High Court decision and left Mrs Agbaje with the Nigerian order on the basis that:

  • the parties had a more significant connection with Nigeria than England;
  • that Nigeria, not England was the natural and appropriate forum for the resolution of Mrs Agbaje’s claims;
  • that no substantial injustice was done to Mrs Agbaje in Nigeria (although it is plain that she will suffer real hardship in England); and
  • comity demands respect for the overseas orders.

The Court of Appeal concluded that “it would not be appropriate to grant Mrs Agbaje even another nibble at the cherry”.

Supreme Court decision

  • The Justices of the Supreme Court decided unanimously in favour of Mrs Agbaje and restored the order of Mr Justice Coleridge.
  • It was held that “the English connections were substantial, if not overwhelming” and the very large disparity between what the parties had received was such as to create real hardship and a serious injustice on the part of Mrs Agbaje.
  • This may prove to be an important decision, particularly in cases where the English connections are strong. In such cases, there may be reason to treat the application as if it had been made in English proceedings.
  • There is no rule that the amount of financial provision should be the minimum amount required to overcome injustice – it is apparent that each case will turn on its own facts. However, subject to the English Court applying general principles that, first primary consideration must be given to the welfare of any children of the marriage; second, that it will never be appropriate to make an order which gives the claimant more than she would have been awarded had all proceedings taken place within this jurisdiction; and third where possible the order should have the result that provision is made for the reasonable needs of each spouse, then the decision to award financial provision lies at the discretion of the English Court.
  • However, the Justices sounded a cautionary note that Part III was not intended to allow a spouse with some English connections to make an application in England to reap reward from what is widely accepted as a generous jurisdiction.

“There will be some cases, with a strong English connection where it will be appropriate to ask what provision would have been made had the divorce been granted in England. There will be other cases where the foreign connection is not strong and a spouse has received adequate provision from the court. Then it will not be appropriate for Part III to be used simply as a tool to “top-up” that provision to that which she would have received in an English divorce”. 

  • Nevertheless, our view is that this decision will give rise to increasing numbers of cases in which those unhappy with divorce awards in foreign jurisdictions will look to the English Court for a second bite at the cherry where one former spouse has or has had a significant connection with this country.

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Category: Article