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Greater protection for wives divorced abroad

16 March 2010

Wives divorced in foreign courts are entitled to apply to courts in England and Wales to ensure their “reasonable needs” are provided for, the Supreme Court has ruled.

The court was ruling in the case of woman awarded a lump sum of only £21,000 and a life interest in a property in Nigeria following her divorce in that country. The Supreme Court unanimously upheld a High Court decision to award her a lump sum of £275,000.

Mr and Mrs Agbaje, who have joint Nigerian and British citizenship, were married for 38 years and have five children, all born in England.

Delivering judgment on behalf of the court in Agbaje v Akinnoye-Agbaje [2010] UKSC 13, Lord Collins said this was the first time an appellate court had determined the proper approach to part III of the Matrimonial and Family Proceedings Act 1984, which gives English courts the power to grant financial relief to people divorced in a foreign country.

Mrs Agbaje was born in Nigeria and married her husband in 1967. Six years later he returned to Nigeria to qualify as a barrister and set up a legal practice. In 1975 he bought a house in London to provide a home for the children, all of whom but the youngest were educated here.

The couple separated in 1999 and Mrs Agbaje decided to live permanently in London, while her husband remained in Nigeria. Mr Agbaje began divorce proceedings in Nigeria in 2003. Two years later a Nigerian judge granted a decree nisi and awarded the wife a life interest in a house in Lagos and a lump sum of £21,000.

The judge rejected her claims to the property in London on the grounds that she hadnot made any financial contribution to the purchase.

However, at the High Court in London, Mr Justice Coleridge awarded Mrs Agbaje 65 per cent of the proceeds of the sale of the London house she was living in, which amounted to around £275,000. This was rejected by the Court of Appeal on the grounds of forum non conveniens.

Lord Collins said the Court of Appeal had wrongly applied forum non conveniens in a situation where the English connections were “substantial, if not overwhelming”.

He said it was not the purpose of part III to allow a spouse to make an application in England to take advantage of what may well be the more generous approach to financial provision, particularly in “so-called big-money cases”.

He went on: “Of course, the court will not lightly characterise foreign law, or the order of a foreign court, as unjust.

“The amount of financial provision will depend on all the circumstances of the case and there is no rule that it should be theminimum amount required to overcome injustice.”

The Supreme Court unanimously allowed the appeal and restored the order of the High Court. Lords Phillips, Rodger, Kerr and Lady Hale contributed to the judgment.

Susan Logie, solicitor at Knox & Co in London, acted for Mrs Agbaje. She said the number of families with substantial connections to more than one country had increased and the 1984 Act was ahead of its time.

She said that if the judgment of the Nigerian courts had not been overturned, Mrs Agbaje would have to lead a life of “fairly extreme poverty” compared to her life before.

“I feel proud that people with substantial connections to this country can use it as an appropriate forum for getting justice,” she said.

“The Nigerian High Court washed its hands of the UK property. This is a fair country and justice has been done.”

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