Agbaje v Akinnoye-Agbaje

Part III of the Matrimonial and Family Proceedings Act 1984 requires two interrelated inquiries: whether England and Wales is an appropriate venue and whether, and how, financial relief should be granted. Forum non conveniens is not the governing test. Hardship, injustice and exceptionality are relevant considerations, but none is a precondition.

Mere disparity between a foreign award and a potential English award is insufficient. Equally, relief is neither confined to the minimum needed to remedy injustice nor available as an automatic top-up. The court must consider all the circumstances, give primary consideration to any child’s welfare, avoid awarding more than domestic proceedings would have produced and, where possible, meet both spouses’ reasonable needs.

After a 38-year marriage, the husband obtained a Nigerian divorce and the Nigerian court awarded the wife a life interest in a Lagos property and a lump sum. The wife, who lived in England, obtained leave under Part III of the Matrimonial and Family Proceedings Act 1984 to seek further financial relief.

Coleridge J awarded her a lump sum equal to 65% of the proceeds of an English property, principally to meet her housing and income needs. The Court of Appeal allowed the husband’s appeal in [2009] EWCA Civ 1, [2009] 3 WLR 835, holding that insufficient weight had been given to the parties’ Nigerian connections and to comity.

The central issues were how sections 16–18 should operate, whether forum non conveniens or comity supplied the governing approach, whether hardship, injustice or exceptional circumstances were prerequisites, and whether relief was confined to the minimum needed to remedy injustice.

Appeal allowed unanimously; Coleridge J’s order restored. Lord Collins delivered the judgment of the Court.

1. Part III of the Matrimonial and Family Proceedings Act 1984 imposes two interrelated duties. Under section 16, the court decides whether England and Wales is an appropriate venue. Under sections 17 and 18, it decides whether to grant relief and, if so, what relief. The section 16 factors address the appropriateness of an English order rather than directly prescribing whether relief should be granted, although many are also relevant under section 18.

2. Section 16 does not enact forum non conveniens. That doctrine chooses between competing forums before proceedings are determined. Part III assumes that foreign proceedings have occurred and permits a second jurisdiction to grant financial relief where appropriate. Comity is substantially reflected in the statutory requirement to weigh the parties’ English and foreign connections. The English court should not lightly characterise foreign law or a foreign decision as unjust.

3. Hardship, injustice and exceptional circumstances are not jurisdictional or discretionary preconditions. Parliament omitted such requirements. They remain relevant considerations under sections 16 and 18. Where relief was available and awarded abroad, mere disparity between that award and a potentially more generous English award will ordinarily be insufficient.

4. There is no statutory rule limiting relief to the minimum required to remedy injustice. Part III also does not provide an automatic top-up to the domestic English level. The amount depends on all the circumstances. Primary consideration must be given to any child’s welfare; the applicant must never receive more than would have been awarded in wholly English proceedings; and, where possible, the reasonable needs of both spouses should be met. Strong English connections may justify treating the application similarly to domestic proceedings.

5. The Court of Appeal had wrongly applied forum non conveniens principles and had not established a proper basis for interfering with Coleridge J’s discretion. The English connections were substantial. The disparity between the parties’ positions caused the wife real hardship and serious injustice. Coleridge J had considered the relevant matters, and a specialist judge was not required expressly to recite every statutory factor.

6. As procedural guidance, “substantial ground” in section 13(1) means a solid ground. Once reasoned leave has been granted without notice, it should ordinarily be set aside only for a compelling reason or a knock-out objection. Otherwise, any challenge should be managed together with the substantive application.

1. United Kingdom Supreme Court: The wife’s appeal was allowed unanimously in [2010] UKSC 13, and Coleridge J’s order was restored.
2. Court of Appeal: The husband’s appeal was allowed in [2009] EWCA Civ 1, [2009] 3 WLR 835. The court exercised the discretion afresh and set aside the financial award.
3. High Court: Coleridge J ordered that the wife receive a lump sum equal to 65% of the gross proceeds of sale of the Lytton Road property, subject to relinquishing her Nigerian life interest.
4. Leave proceedings: Munby J granted leave in [2005] EWHC 3459 (Fam) and maintained it following an inter partes challenge in [2006] EWHC 3285 (Fam). The Court of Appeal refused permission to appeal in [2007] EWCA Civ 681.