Case Preview: Agbaje v Akinnoye-Agbaje [updated]
31 Saturday Oct 2009
This is the first matrimonial finance case to be heard by the Supreme Court. It is also the first case under Part III of the Matrimonial and Family Proceedings Act 1984 to be heard by the highest tribunal in the land – none having ever reached the House of Lords.
The case concerns an application under the 1984 Act made by a former wife (“the wife”) for financial relief in England after a Nigerian divorce. The parties, who are Nigerian and British citizens, were married for over 32 years. Most of their marriage was spent in Nigeria although their children were born and educated in England. After the parties separated in 1999 the wife set up home in England.
The effect of the Nigerian financial order was to award the wife a life interest in a home in Nigeria, worth about £83,000, and a lump sum of £21,000 as maintenance for life. Her former husband (“the husband”) retained assets of some £616,000. The wife obtained leave to proceed with her application under Part III and was ultimately awarded 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 successfully appealed to the Court of Appeal ( EWCA Civ 1;  3 WLR 835) which dismissed the wife’s application.
Ward LJ, who gave the lead judgment, examined four main issues:
- the proper scope and role of the application for leave and the essential difference between that application and the hearing of the substantive application;
- the purpose of the legislation;
- the role of the principles of comity and forum conveniens; and
- the circumstances in which it was ‘appropriate’ (per s.16 of the 1984 Act) to order financial relief.
In emphasising the exceptional circumstances in which relief under Part III should be granted, the Court of Appeal has to some extent bucked the recent trend of granting leave. The Court of Appeal has confirmed that it is not sufficient for the applicant to establish that she would have been awarded substantially more had the case proceeded in England. The focus should be on whether, objectively speaking, substantial justice or injustice was done overseas, a fortiori when the foreign court was the appropriate forum. In assessing whether an applicant has been treated unfairly it was necessary to view matters not simply through the prism of English law but also the relevant foreign law.
The Court of Appeal also made some firm observations about the procedure that is frequently adopted in Part III cases whereby applications are made to set aside the grant of leave. If the application to set aside fails the parties have to embark upon a further inter parties hearing where the substantive application is determined. The Court of Appeal strongly deprecated such applications to set aside once leave had been granted. Instead the parties should move straight to the substantive application. This is the approach that pertains in judicial review applications and appeals to the Court of Appeal.
The wife’s appeal to the Supreme Court is to be heard on 3 and 4 November 2009.
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.
Update: The case is discussed in an article by Frances Gibb in the Times on 2 November 2009 under the headline “Woman left broke by divorce payout takes fight to Supreme Court”