Agbaje v Agbaje

Part III financial relief after an overseas divorce is an exceptional remedy for serious injustice, not an appeal from a foreign financial order. The court must assess objectively whether substantial justice was done overseas, giving significant weight to comity, the parties’ connection with the divorce country and the natural forum for resolving the dispute. A disparity between the foreign award and a likely English award is relevant but cannot dominate the assessment. The absence of an English-style power to transfer property does not, by itself, establish serious injustice where the foreign court could make broadly comparable provision. A further order will ordinarily be inappropriate where the foreign court was the proper forum and made an appropriate order.

The parties, both Nigerian-born British citizens, married in England and spent most of their married life in Nigeria. Following divorce proceedings in Nigeria, the Nigerian court awarded the wife a life interest in property in Lagos and a lump sum for maintenance, but dismissed her claims concerning the London properties.

The wife obtained leave under Part III of the Matrimonial and Family Proceedings Act 1984. Coleridge J subsequently ordered that she receive 65% of the gross proceeds of sale of the London matrimonial property, subject to relinquishing her Nigerian life interest. The husband appealed. The central issue was whether, having regard to the Nigerian proceedings, the parties’ connections and the relief obtained there, it was appropriate under section 16 to make further financial provision in England.

The Court of Appeal unanimously allowed the appeal. Ward LJ gave the leading judgment; Longmore LJ agreed and added that the Nigerian statutory powers were broadly comparable to those under the English legislation. Jackson LJ agreed with both judgments.

1. Leave and substantive hearing. The leave application under Part III is a protective filter. The applicant must give full and frank disclosure and establish a substantial ground for making the application. The court makes a quick assessment of the applicant’s uncontroverted case. The merits should ordinarily be addressed at the substantive hearing, not through an extensive application to discharge leave. The approach in Jolly v Jay [2002] EWCA Civ 277 and the related procedural authorities was endorsed.
2. Purpose of Part III. The legislation addresses exceptional cases in which serious injustice would otherwise result. It does not authorise the English court to review or correct the order of a competent foreign court, and a second bite at financial provision is justified only exceptionally. Mere disparity between foreign and English outcomes is insufficient.
3. Section 16. The court must consider objectively whether substantial justice or injustice was done overseas. Where the foreign court was the natural and appropriate forum, the primary focus is on how that court treated the applicant. Comity and forum conveniens considerations are significant. The parties’ connection with the divorce country may be more important than their connection with England and Wales.
4. Application. The Nigerian court had power to make a settlement and confer a life interest. The absence of an outright transfer power did not itself establish serious injustice. Coleridge J failed adequately to address the Nigerian connection, comity, the relief obtained in Nigeria and the exceptional nature of the case. He therefore erred in law. The Court of Appeal exercised its own discretion because the facts were fully available and further litigation would be disproportionate. The wife’s Part III claim was dismissed.

1. Court of Appeal (Civil Division): Permission to appeal granted and appeal allowed. The order for further financial relief was set aside and the wife’s Part III claim was dismissed: [2009] EWCA Civ 1.
2. High Court of Justice, Family Division: Coleridge J ordered payment to the wife of 65% of the gross proceeds of sale of 27 Lytton Road, subject to her relinquishing her Nigerian life interest, and dismissed her claims for periodical payments and a property adjustment order.