Akinnoye-Agbaje v Akinnoye-Agbaje

JurisdictionEngland & Wales
CourtSupreme Court
JudgeLORD COLLINS
Judgment Date10 Mar 2010
Neutral Citation[2010] UKSC 13

[2010] UKSC 13

THE SUPREME COURT

Hilary Term

On appeal from: [2009] EWCA Civ 1

before

Lord Phillips, President

Lord Rodger

Lady Hale

Lord Collins

Lord Kerr

Agbaje
(Respondent)
and
Akinnoye-Agbaje (FC)
(Appellant)

Appellant

Nigel Dyer QC

Eleanor Harris

(Instructed by Knox and Co)

Respondent

Timothy Scott QC

Peter Mitchell

Amber Sheridan

(Instructed by Tucker Turner Kingsley Wood and Co)

LORD COLLINS (delivering the judgment of the court)

Introduction

1

Part III of the Matrimonial and Family Proceedings Act 1984 was enacted to give the English court the power to grant financial relief after a marriage had been dissolved (or annulled) in a foreign country. This appeal raises for the first time at this appellate level the proper approach to the operation of Part III of the 1984 Act.

2

Mr and Mrs Agbaje ("the husband" and "the wife") were married for 38 years prior to their divorce in 2005 on the husband's petition in Nigeria. They were born in Nigeria, but both have British and Nigerian citizenship. All five children of the family were born in England. The wife has been living in England continuously since 1999, when the marriage broke down. The assets are about £700,000, of which £530,000 represents two houses in London in the husband's name, and the balance represents properties in Nigeria. The Nigerian court awarded the wife a life interest in a property in Lagos (which, as found by the Nigerian court, had a capital value of about £86,000) and a lump sum which was the equivalent of about £21,000.

3

Munby J acceded to an ex parte application by the wife for leave to make an application under Part III, and confirmed his decision on the husband's application to set it aside. On the substantive hearing Coleridge J made an order which was intended to enable the wife to house and maintain herself in London by providing her with 65% of the proceeds of sale (expected to be about £275,000) of the house in which she has been living. His order is the equivalent of a 39% award to the wife. The Court of Appeal (Ward, Longmore and Jackson LJJ) allowed the husband's appeal, principally on the ground that the judge had given insufficient weight to the connections of the case with Nigeria: [2009] EWCA Civ 1, [2009] 3 WLR 835. An Appeal Committee of the House of Lords granted leave to appeal from that decision.

Matrimonial and Family Proceedings Act 1984, Part III

The background to Part III of the 1984 Act

4

The background to Part III was concern at the hardship to wives and children caused by the effect of a combination of the liberality of the rules relating to recognition of foreign divorces and the restrictive approach of some foreign jurisdictions to financial provision. The problem became apparent in a series of cases in the 1970s in which there had been a foreign divorce in proceedings (both judicial and extra-judicial) instituted by the husband in which no financial provision had been made for the wife.

5

In those cases the divorce was entitled to recognition in England, e.g. because of a "real and substantial connection" with the foreign country (under the rule in Indyka v Indyka [1969] 1 AC 33) or because of the husband's citizenship of that country (Recognition of Divorces and Legal Separations Act 1971, now the Family Law Act 1986). As a result the parties were regarded as no longer married, and the court was not able to make an order in her favour for financial relief: Turczak v Turczak [1970] P 198, in which it was held that, following a Polish divorce, there was no power to order maintenance under the Matrimonial Causes Act 1965 because the parties were no longer husband and wife; Torok v Torok [1973] 1 WLR 1066, in which Ormrod J drew attention to the fact that, if a divorce were obtained in Hungary on the basis of the husband's Hungarian nationality, it would have to be recognised, and the English court would have no jurisdiction under the Matrimonial Proceedings and Property Act 1970 to deal with the house in England where the wife and children were living, even though the Hungarian court was unlikely to award maintenance. As a result of these cases there were calls for legislation to give the English court jurisdiction to grant ancillary relief after a foreign divorce: e.g. Karsten (1970) 33 MLR 205 and (1972) 35 MLR 299; Pearl [1974] CLJ 77.

6

In Quazi v Quazi [1980] AC 744, which was decided in 1979, the husband had pronounced a talaq in Pakistan. The question was whether the English court had jurisdiction on the wife's petition to dissolve the marriage and make consequential orders relating to a house in Wimbledon in which the wife was living with their son and which belonged to the husband, and to make provision for their financial support. It was held by the House of Lords that the talaq was to be recognised under the 1971 Act. Consequently there was no subsisting marriage and no power in the English court to make financial provision. In the Court of Appeal Ormrod LJ (as he had become) drew attention to the urgent need for attention by Parliament to deal with the problem. In the House of Lords Lord Scarman agreed (at 819) that there was need for reform, and expressed the hope that the matter would be referred to the Law Commissions.

7

The matter was then referred to the Law Commissions. In 1980 the Law Commission for England and Wales published a Working Paper on Financial Relief after Foreign Divorce (Working Paper No 77 (1980)), which was supplemented by a Scottish Law Commission Consultation Paper in 1981. Both Commissions published Reports in 1982: Law Com No 117 and Scot Law Com No 72. The Law Commissions recommended that the law be reformed to allow financial provision to be ordered after a foreign divorce not only in cases where no financial provision had been made, or could have been made, in the country where the divorce was granted, but also where the provision was inadequate. The Law Commission for England and Wales also recommended a filter mechanism requiring leave of the court to make an application to the English court.

Part III of the 1984 Act

8

As a result of the work of the Law Commissions, Part III (applying to England and Wales) and Part IV (applying to Scotland) of the Matrimonial and Family Proceedings Act 1984 were enacted. The law in Northern Ireland is equivalent to Part III of the 1984 Act: SI 1989 No 677 (NI 4). There are significant differences between Part III and Part IV, to which it will be necessary to revert.

9

Part III applies to annulment and judicial separation as well as to divorce, but for ease of exposition only divorce will be referred to in this account. By section 12, where a marriage has been dissolved, by means of judicial or other proceedings in an overseas country, and the divorce is entitled to be recognised as valid in England and Wales, either party to the marriage may apply to the court in the manner prescribed by rules of court for an order for financial relief under Part III. A filter mechanism is established by section 13:

"(1) No application for an order for financial relief shall be made under this Part of this Act unless the leave of the court has been obtained in accordance with rules of court; and the court shall not grant leave unless it considers that there is substantial ground for the making of an application for such an order.

(2) The court may grant leave under this section notwithstanding that an order has been made by a court in a country outside England and Wales requiring the other party to the marriage to make any payment or transfer any property to the applicant or a child of the family.

(3) Leave under this section may be granted subject to such conditions as the court thinks fit."

10

Section 15(1) sets out the jurisdictional requirements: (a) domicile in England and Wales of either of the parties on the date of the application for financial provision or on the date when the divorce in the foreign country took effect; or (b) habitual residence of either of the parties for one year ending on the date of the application or the foreign divorce; or (c) a beneficial interest by either or both, at the date of the application, in a dwelling-house in England and Wales which was at some time during the marriage used as a matrimonial home.

11

Section 16 provides:

"(1) Before making an order for financial relief the court shall consider whether in all the circumstances of the case it would be appropriate for such an order to be made by a court in England and Wales, and if the court is not satisfied that it would be appropriate, the court shall dismiss the application.

(2) The court shall in particular have regard to the following matters—

(a) the connection which the parties to the marriage have with England and Wales;

(b) the connection which those parties have with the country in which the marriage was dissolved or annulled or in which they were legally separated;

(c) the connection which those parties have with any other country outside England and Wales;

(d) any financial benefit which the applicant or a child of the family has received, or is likely to receive, in consequence of the divorce, annulment or legal separation, by virtue of any agreement or the operation of the law of a country outside England and Wales;

(e) in a case where an order has been made by a court in a country outside England and Wales requiring the other party to the marriage to make any payment or transfer any property for the benefit of the applicant or a child of the family, the financial relief given by the order and the extent to which the order has been complied with or is likely to be complied with;

(f) any right which the applicant has, or has had, to apply for financial relief from the other party to the marriage under the law of any country outside England and Wales and if the applicant has omitted to exercise that right the reason for that omission;

(g) the...

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