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Expat Divorce Settlements
UK Case Study: Agbaje v Agbaje (2010)
Carol Barraclough
The newly-reported case of Agbaje v Agbaje (2010) UKSC 13 has raised the issue of entitlement for spouses who have dual nationality in divorce proceedings. This is the first time that the Justices of the Supreme Court have considered the circumstances in which one party may seek an amended, and possibly further, financial award in England although the divorce has been deemed to be concluded in another country.
Mr and Mrs Agbaje lived in Nigeria for much of their 38 year marriage, though had joint Nigerian and British citizenship. Mr Agbaje qualified as a barrister and whilst he set up a legal practice in Nigeria, he maintained a home in London for the family. The parties have five children, all of whom were born (and educated, bar the youngest) in England. When the marriage broke down in 1999, Mrs Agbaje returned to England with Mr Agbaje remaining in Nigeria.
In 2003, Mr Agbaje began divorce proceedings in Nigeria whilst Mrs Agbaje issued proceedings in England. She did, however, make an application for financial provision in Nigeria, intimating that she would pursue proceedings in England under Part III of the Matrimonial and Family Proceedings Act 1984 in due course. The assets of the marriage, predominantly in Mr Agbaje's name, were valued at £700,000.
Mr Agbaje's divorce application was successful, being granted a decree in 2003, and being ordered to settle in favour of his wife for a life interest in a property in Lagos (worth £86,000) and a lump sum of £21,000. Mrs Agbaje's claim for an interest in the London property was unsuccessful on the basis that she had made no financial contribution to its purchase. Her settlement was, albeit small by English standards, one half of what she was seeking.
Mrs Agbaje's application under Part III of the 1984 Act raised the question of the approach of the English courts, firstly where an ancillary relief order has been made in the same court that the divorce has been granted and secondly, where an ancillary relief award has been made under legislation similar to that of the English courts but amounts to significantly less than that which would have been awarded in England.
In determining whether the English court could make an order, they must have regard to all of the circumstances of the case and include, but are not limited to:
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The parties' connection with the country in which they make a further application. |
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The country in which the decree of divorce was pronounced. |
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The rights to apply for financial provision under the law of another country outside England and Wales together with an award already made. |
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Whether there is a property in England and Wales available to make an order on. |
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The likelihood of enforceability of any further order made, and |
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The length of time elapsed since the divorce. |
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Mrs Agbaje argued that she would suffer a significant risk of real hardship if she were refused further provision but this was rejected by the Court of Appeal. She continued her fight, and the Supreme Court ruled unanimously in her favour awarding her £275,000, almost three times that which she had been awarded by the Nigerian courts. The court found that the purpose of the particular legislation "...was the alleviation of the adverse consequences of no, or no adequate, financial provision being made by a foreign court in a situation where there were substantial connections with England" (Lord Collins, para 71), and continued by saying that on the facts of this case "...there was a very large disparity between what the wife received in Nigeria and what she would have received in England, but that there was also a very large disparity between what the husband received and what the wife received such as to create real hardship and a serious injustice".
The outcome has received mixed reactions in the English press. One suggested that the ruling confirms "London as divorce payout capital" with many following the theme and stating that the floodgates are now open for disgruntled, overseas claimants. However, the judgement is quite clear as to the grounds on which they will review a decision made overseas and assuming one can satisfy the requirements, it is likely that the English courts will at least consider whether the reasonable needs have already been provided for in a previous order.
It should be remembered that the amount of financial provision the English courts may make is dependant on all the circumstances of the case, with particular attention being given to the welfare of any children of the marriage. It is simply not the case that the claimant would be awarded more than they would have done had all the proceedings taken place within the English jurisdiction.
The salient point of this case for potential claimants is the connection with the case to England. If litigants have severed all ties since leaving the jurisdiction, then they are unlikely to succeed in a similar action. The closer the connection, the more likely it is that the Court will make an award equating to that which would be made on a English-based only divorce. Is it too early to establish exactly what the courts will consider to be ‘close connections' and it may not just be residency versus nationality.
Once you have overcome the hurdle of whether the court will consider your application, it is worth noting that Mr Agbaje's contention that his wife had created her own hardship by returning to London after the separation failed, as did the fact that she had changed residence post separation. That is not to say, however, that these factors will not be considered in the future as they are generally deemed relevant to divorce proceedings brought about entirely in England.
The outcome of this decision is that it may be appropriate for two jurisdictions to be involved, one for the divorce and one for ancillary relief. Note however, that the issue of English connection, hardship, delay and enforceability are all involved, before a "top-up" can become a realistic prospect.
Carol Barraclough is a Solicitor in the family team at Matthew Arnold and Baldwin and can be contacted on:
carol.barraclough@mablaw.co.uk or + 44 - 1923 - 215 - 063.
April 2010
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