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What Financial Relief Can A Court Give To Overseas Divorces?

Agbaje v Akinnoye-Agbaje [2010] UKSC 13

What Approach should the Court take on a Part III Application?

This case considered the correct approach the court should be taking when considering applications under the Matrimonial & Family Proceedings Act 1994  Pt III. This enables a court to grant financial relief after a marriage has been dissolved overseas.

Mr and Mrs Agbaje were married for 38 years and owned a property in England called Lytton Road. Their five children were all educated in England. The couple attained UK citizenship in 1972.  Despite this the parties spent most of their married life in Nigeria.  Mrs Agbaje moved back to England and resided at the Lytton Road house in 1999 after the couple separated.  The Nigerian courts awarded Mrs Agbaje a life time interest in a property in Lagos and a lump sum payment.  In respect of the property in England Mrs Agbaje was granted a lump sum of 65% of the value of Lytton Road on the condition that she gave up her life interest in the Lagos property.

The Court of Appeal set aside the whole of the English award principally on the ground that the High Court had given insufficient weight to the connections of the case with Nigeria.

The matter was then sent to the Supreme Court. Should the Court of Appeal have set aside this judgement?  It was eventually decided that it was not an appropriate application of Part III for the Court of Appeal to determine whether or not an order should be made by a court in England or Wales as opposed to a foreign court. As such the decision of High Court was restored.

The main issue the Supreme Court had to consider was the correct  approach in determining applications made under Part III?

The Supreme Court allowed the Appeal

The Supreme Court unanimously allowed the wife’s appeal and restored the order of the High Court. Lord Collins delivered the judgement.

The Court held that Part III was to be applied because the purpose of the Act was to alleviate the adverse consequences of inadequate financial provision being ordered by a foreign court provided the parties had substantial connections with England ([71]). In applying Part III, the English courts were not deciding if it was appropriate for an order to be made by a court in England or Wales instead of a foreign court. Part III existed to allow for relief in circumstances where there have already been proceedings in a foreign country ([50]).

What the Court must consider in a Part III Application

In deciding  whether an order should be made and, if so, what order, the court will consider the financial benefit which the applicant has already received, or whether the applicant has failed to take advantage of a right under the foreign law to claim financial relief. The hardship or the injustice which would result if no award were made will be relevant factors, although neither are pre-conditions to an award under Part III ([41]-[44]and [60]-[61]).

There was no principle that an English court could only make an award that was the “minimum necessary to remedy the injustice” but it was equally not the intention of the legislation to allow a simple “top-up” of the foreign award so as to equate with an English award in every case ([62]-[65]; [72]). If the connection with England is not strong and a spouse has received adequate provision from the foreign court, a Part III application is not to be used to “top-up” the award. If the English connections are strong, however, it may be appropriate to do so ([70]).

The amount of financial provision awarded under Part III will depend on all the circumstances of the case. Consideration should first be given to the welfare of any child of the marriage. Second, it would not be appropriate to make an order which gave the claimant more than she or he would have been awarded had this jurisdiction handled all of the proceedings. Thirdly, the order should have the result that provision is made for the reasonable needs of each spouse where possible([73]).

Judgement was handed down on 10 March 2010




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