Akinnoye-Agbaje v Akinnoye-Agbaje

At the leave stage under Part III of the Matrimonial Proceedings and Property Act 1984, the court asks only whether there is substantial ground for a financial-relief application. A prior foreign financial order does not automatically prevent a further application. Leave may be justified where the circumstances are sufficiently exceptional, including a marked discrepancy between assets relevant under the domestic approach and the provision made abroad, possible hardship, and an arguable difference between the principles applied by the foreign court and those applicable in England and Wales.

Granting leave is not permission to reopen the foreign proceedings generally. The substantive hearing may be confined to defined issues. The Court of Appeal refused permission because the first-instance judge’s application of the statutory test was not arguably wrong.

The parties, formerly married for more than 30 years, had Nigerian divorce and financial proceedings. The Nigerian court reviewed their assets, awarded the wife a Nigerian property and lump sum, and refused claims concerning two English properties.

In England, the wife obtained leave under Part III and issued financial-relief proceedings. The husband unsuccessfully sought to set aside that leave, arguing that she was seeking a second bite after a full foreign hearing. Munby J limited the forthcoming hearing to the English properties, a lump sum and periodical payments. The husband renewed his application for permission to appeal, arguing that the judge had misapplied the statutory filter and that the Nigerian decision should preclude further relief. The central issue was whether the wife’s case disclosed substantial ground under section 13(1).

The renewed application for permission to appeal was refused. Lord Justice Wall gave the principal judgment, and Lord Justice Wilson agreed.

1. The only issue at the leave stage under section 13(1) of Part III of the Matrimonial Proceedings and Property Act 1984 was whether there was substantial ground for making an application for financial relief. The court was not determining the merits or predicting the result of the substantive hearing.
2. Earlier financial proceedings and an order in a foreign jurisdiction did not automatically make a further application impermissible. The circumstances could be sufficiently exceptional to justify leave. Relevant considerations included the discrepancy between the aggregate matrimonial assets relevant under the domestic approach and the provision made abroad, the hardship that might follow if leave were refused, and whether the foreign court had applied principles comparable to those applicable in England and Wales.
3. On the facts, Munby J was entitled to find substantial ground. The discrepancy in provision and the wife’s position in relation to the English properties meant that his decision could not reasonably be characterised as plainly wrong.
4. Lord Justice Wilson added that the Nigerian rejection of the claim to the English property might have resulted from principles of equitable ownership rather than redistributive principles. Munby J could provisionally reach that conclusion from the way the Nigerian arguments and decision were recorded. Expert evidence on Nigerian law was not indispensable at that preliminary stage. In that event, the observations of Thorpe LJ in Jordan v Jordan [2000] 1 WLR 210 were relevant.
5. Leave did not give the wife carte blanche to reopen the Nigerian proceedings. Munby J had properly restricted the substantive hearing and evidence to defined matters, including the English properties and limited monetary claims. The husband remained entitled to advance his substantive arguments, including the point relied on under section 16(2)(e).
6. Lord Justice Wilson observed that the judge’s categorical comments about hardship should not be treated as preclusive of the substantive result. They were made in the context of the leave filter and should not determine what would happen at the final hearing.

• Court of Appeal (Civil Division): the renewed application for permission to appeal was refused, [2007] EWCA Civ 681.
• High Court, Family Division: Munby J granted leave to apply for financial relief under Part III, then refused the husband’s application to set aside that leave. The substantive judgment was handed down on 18 December 2006 and the order was dated 16 March 2007.