Case Comment: Agbaje v Akkinoye-Agbaje  UKSC 13
16 Tuesday Mar 2010
On 10th March 2010 the Supreme Court handed down a unanimous judgment, delivered by Lord Collins, in Agbaje v Akkinoye-Agbaje ( UKSC 13) the first case under Part III of the Matrimonial and Family Proceedings Act 1984 ever to have been heard by the highest tribunal in the land
The case concerned an application made by a former wife (“the wife”) under the 1984 Act for financial relief in England after a Nigerian divorce. The parties, who both had Nigerian and British citizenship, were married for over 32 years. Most of their marriage had been spent in Nigeria although their children had been born and educated in England. After the parties separated in 1999 the wife had set up home in England.
The effect of the Nigerian financial order was to award the wife a life interest in a home, worth about £83,000, in Nigeria and a lump sum of £21,000 to provide maintenance for life. Her former husband (“the husband”) retained assets worth some £616,000. The wife obtained leave to proceed with her application under Part III from Munby J (as he then was).
At the hearing of the application Coleridge J awarded the wife 65% of the sale proceeds of an English property (some £275,000) on condition that she relinquish her life interest in the Nigerian property. The husband had successfully appealed to the Court of Appeal, which had dismissed the wife’s application ( EWCA Civ 1). The Supreme Court has now allowed the wife’s appeal and restored Coleridge J’s Order.
The Supreme Court’s decision provides guidance on six important issues:
In light of the shocking delay between the initial grant, on an ex parte basis, of leave to make the substantive application under the 1984 Act (September 2005) and the making of the substantive order (April 2008), which delay had been engendered in part by the husband’s application to set aside the grant of leave, the Supreme Court held that once leave has been given under the 1984 Act, the approach to setting aside that leave should be the same as under CPR r.52.9, i.e. a compelling reason so to do must be established. Thus, once the threshold for leave is crossed, unless the respondent can deliver a knock-out blow, the court should use its case management powers to adjourn any application to set aside to be heard with the substantive application. As to the threshold for leave (governed by section 13), which requires a substantial ground to be established, the Supreme Court held that “substantial” means “solid”, i.e. not high, but higher than “serious issue to be tried” or “good arguable case”.
(II) The purpose of section 16(2)
The Supreme Court held that both Munby J and Coleridge J had made an error, insofar as both had considered that the question for determination in section 16 is whether it is appropriate for an order to be made. In fact that section is directed to whether it would be appropriate for an order to be made in England and Wales. In other words, its purpose is to determine whether England and Wales is an appropriate venue. In practical terms, however, there will be an overlap between the factors that fall to be considered under section 16 and those under section 18 (which sets out the factors the court must take into account in deciding whether to exercise its powers under section 17), not least because section 18(2) directs the court to have regard to “all the circumstances of the case”.
(III) The significance of forum non conveniens and comity under section 16
In the Court of Appeal, Ward LJ had held that some compelling reason would be needed to justify a situation in which a court ruled that a husband would be entitled to a stay of the divorce suit on the basis that substantial justice could be done in the appropriate forum, followed by a ruling very soon afterwards that a serious injustice had been inflicted on the wife in that forum in respect of the level of financial ancillary relief granted to her. The Supreme Court disagreed with this analysis, concluding that the forum non conveniens principles are directed at a different question. Those principles are directed at the question of which of two jurisdictions is appropriate for the substantive divorce, whereas section 16 of the 1984 Act does not impose a statutory forum non conveniens test in respect of the substantive divorce, or in respect of any other issue between the parties. The task of the court under section 16 is to determine whether it would be appropriate for an order to be made in England and Wales notwithstanding that the divorce proceedings were in a foreign country that may have been the appropriate forum for the divorce.
As to comity, the Supreme Court addressed four points. First, there is nothing internationally objectionable in legislation which gives a court power to order financial provision notwithstanding the granting of a divorce and financial ancillary relief in an overseas jurisdiction, provided that the forum in which the new application is made has an appropriate connection with the parties or their property; section 16 is directed to this end. Secondly, although a court in one country should not lightly characterise the law or judicial decisions of another country as unjust, one did not need to resort to comity for such an elementary principle. Thirdly, although comity may be said to be the basis for the enforcement and recognition of foreign judgments, the Nigerian Order was variable. Moreover, there were unlikely to be difficulties of issue estoppel, as Munby J had ordered that crucial findings of fact made by the court in Nigeria were to stand in the Part III proceedings. Finally, the Supreme Court left open a tantalising question for those with an interest in private international law. As Part III is subject to Council Regulation (EC) 44/2001 and the Lugano Convention, insofar as the foreign award in a Member or Contracting State might be classified as “maintenance”, as defined autonomously under those instruments (see Case C-2202/95 Van den Boogaard v Laumen  ECR I-1147 and Moore v Moore  2 FLR 339 (CA)), does this preclude an application in England under Part III?
(IV) Hardship & Injustice
The Supreme Court held that neither hardship not injustice are necessary pre-conditions for the exercise of jurisdiction under Part III, but both will be relevant factors for the court to take into consideration under sections 16 and 18.
(V) Minimum extent necessary to remedy justice.
In A v S (Financial Relief after Overseas US Divorce and Financial Proceedings)  1 FLR 431, Bodey J had held that it is only appropriate for the English court to grant relief under Part III of the 1984 Act to the minimum extent necessary to remedy the injustice that is otherwise perceived to exist. The Supreme Court held that there is no such restriction. Although it is not the purpose of the 1984 Act to allow a simple “top-up” of the foreign award so as to equate to an English domestic award, where the English connections in the case are very strong there may be no reason why the application should not be dealt with in the same way as one made in English domestic proceedings. However, in other situations a different approach may well be appropriate.
(VI) The Proper Approach under Section 18
The Supreme Court emphasised the broad discretion conferred on the court in respect of both the granting of leave to make an application under Part III of the 1984 Act and in making the substantive award if leave is granted. Three general principles were affirmed. First, primary consideration must be given to the welfare of any child of the marriage. Secondly, it will never be appropriate to make an order which gives the claimant more than she or he would have been awarded had all the proceedings taken place within this jurisdiction. Thirdly, where possible the order should meet the reasonable needs of both parties.
It was widely considered that the decision of the Court of Appeal had closed the door to many Part III applications. The Supreme Court appears to have re-opened the door – perhaps even further than before. One thing is clear: by affirming the primacy of the statute, the Supreme Court has ensured that discretion is the order of the day.
Deepak Nagpal practises at 1 KBW, he is a leading junior in the field of matrimonial finance and the co-editor of Jackson’s Matrimonial Finance and Taxation.