Stephens Scown Solicitors - Family and Divorce Solicitors Exeter, St Austell, Truro, Devon, Cornwall, South West

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Encouragement offered to international divorce clients

A Nigerian woman has been granted permission to take her case to the House of Lords in a decision that could have a significant bearing on the way overseas divorces are treated in the English Courts. The case is of particular relevance to divorcees who consider they have been failed by the foreign courts.

Background

Mr and Mrs Agbaje had been married for 40 years and spent most of their married life in Nigeria. They had a long standing connection with the UK:

They had met here in 1967 and had been British citizens since 1972.

Mr Agbaje was a member of the English Bar

The four children of the marriage had been born in England and the eldest three were educated in this country.

Two properties had been bought in England in 1975, and the Husband had purchased a further property in London following the separation in 1999.

Mrs Agbaje had been a resident in England since separation, spending the majority of her time living at one of the London properties. It was intention to make her home in England.

The parties had total assets in the region of £700,000, and had the divorce proceedings taken place in this country after a 40 year marriage, Mrs Agbaje could have reasonably expected the English Courts to award her an equal share of the assets. Mr Agbaje issued divorce proceedings in Nigeria however, and although Mrs Agbaje sought to deal with the proceedings in the English Courts, she was unsuccessful.

As a result of the Nigerian proceedings, Mrs Agbaje was awarded a Nigerian property worth £86,000 and a lump sum equivalent to £20,000 to capitalise her maintenance claims. The Nigerian Courts had no powers to transfer the English properties and did not take those properties into account in their award. These properties did however form a significant proportion of the total pot, carrying equity of £530,000 at the time of the case. Consequently, Mrs Agbaje was left with approximately 15% of the matrimonial assets.

Part III of the Matrimonial and Family Proceedings Act 1984 ("MFPA84")

Mrs Agbaje applied to the English Courts for permission to bring an application for financial relief under Part III of MFPA84. Mr Agbaje opposed his former wife's application, arguing that Mrs Agbaje was seeking to use the English jurisdiction as a form of appellate court from the Nigerian High Court and in effect, have two bites of the cherry.

The MFPA84 was introduced on the basis of recommendations set out in Law Commission's Working Paper (1980) No.77 on Financial Relief After Foreign Divorce. In it, the Law Commission made reference to the particular problems at which Part III was aimed at addressing. It particularly dealt with the injustice that would occur if the foreign courts could not or would not make any order in relation to capital assets in England, entirely relevant in Mrs Agbaje's case. No value whatsoever was ascribed to the English assets by the Nigerian Court.

After considering her case in the first instance, Mr Justice Coleridge in the High Court came to the view that rather than being a second bite of the cherry, Mrs Agbaje had only been allowed the "merest of nibbles" in Nigeria. He awarded Mrs Agbaje a lump sum of £275,000.

Mr Agbaje then took the case to the Court of Appeal where it was treated in a very restrictive fashion. The Court observed:

That it was a worrying phenomenon that the English Courts were being treated as the "jurisdiction of choice" to disaffected wives around the world, and this should be discouraged. Whilst disparity was an obvious factor to which the Court should hav regard, it should not be permitted to dominate.

If the overseas court makes an order that may well ordinarily satisfy English Courts then it is not appropriate to make a further order under Part III.

Although it is plain that she was going to suffer real hardship, comity demanded respect for the overseas orders and it would not be appropriate to grant Mrs Agbaje even "another nibble at the cherry".

As a result the Nigerian Order was restored, and it is now reported that Mrs Agbaje, who is elderly and unable to work, has been left homeless and penniless as a result of expenses incurred between hearings. Bearing in mind the purpose of the Act as articulated by the Law Commission, the Court of Appeal failed Mrs Agbaje miserably. Permission to appeal to the House of Lords was refused by the Court of Appeal, however on applying direct to the House of Lords Mrs Agbaje was granted permission. It is not yet known when the appeal will be heard, however international divorce experts will monitor developments in this case closely, since it could have wide ranging implications for their international clients.

We at Stephens Scown have experience in dealing with applications under Part III of MFPA84, particularly in cases where overseas courts have ignored assets located in England. This news in the Agbaje case offers encouragement to anyone seeking to rely on Part III of the MFPA84, and we would recommend anyone seeking advice in relation to any international divorce issues to seek advice from us at an early stage.

Andrew is a member of the Stephens Scown family law team, which is top ranked in the independent Chambers and Legal 500 guides to the legal profession. Andrew is a Resolution Accredited Specialist in complicated financial matters arising from divorce and has particular experience in dealing with international divorce issues.