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20 JAN 2009

ANCILLARY RELIEF: Agbaje v Agbaje [2009] EWCA Civ 1

(Court of Appeal; Ward, Longmore and Jackson LJJ; 20 January 2009)

The Nigerian couple had spent most of their married life in Nigeria, although during the 33-year marriage they had acquired British citizenship and had spent some time living in England. After the separation the wife set up home in England, but her attempt to obtain an English divorce was unsuccessful; a Family Division judge held that 'there was no evidence that substantial justice could not be obtained by the wife in the courts of Nigeria'. Ultimately the Nigerian court granted the husband a Nigerian divorce, going on to award the wife a life interest in the matrimonial home, worth about £83,000, plus a lump sum payment of £21,000 as 'maintenance for life'. The husband retained assets of about £616,000, including two properties in London. The wife sought leave without notice to issue her application for financial relief in England following an overseas divorce. The initial judgment granting that leave was short, but on the husband's application to set aside leave the leave judge produced a long judgment, confirming that unless leave was given the wife would suffer hardship. However, the application was confined to the English assets, and the issue of a periodical payments order. The trial judge eventually awarded the wife £275,000 from the sale of the English property on condition that she transferred her life interest in the Nigerian property to the husband; the trial judge placed considerable reliance on the judgment given by the leave judge for his findings.

In the first review by the Court of Appeal of a financial relief order following an overseas divorce (rather than a review of the grant of leave to apply for such relief), the court set out the principles to be applied. The permission stage was intended to protect the potential respondent from having to present a strong defence at substantial cost, particularly if, as would often be the case, he was living abroad. At the permission stage the court had to decide whether there was a substantial ground for making the order, on the basis of a quick impressionistic assessment of the merits. The apparent readiness of respondents to challenge the grant of leave, instead of getting on with the substantive hearing was unsatisfactory; the practice of arguing the merits at this stage was almost invariably a complete waste of time and money, and carried a risk that, as in this case, the trial judge would pay undue deference to a judgment that was no more than a grant of leave. The Family Division was advised to restrict attempts to overturn a grant of such leave to very plain cases only. The purpose of the jurisdiction to award financial provision after a foreign divorce was to remit hardship in the exceptional case in which serious hardship would otherwise be done. Comity between courts of competing jurisdiction, although this was not to be pushed too far, had a significant influence on the way the decision had to be taken. It was necessary to pay close attention to the interests of justice as they would have affected a stay, and such interests of justice as would require the correction of the order then made by the foreign court. The focus should be on whether substantial justice or injustice had been done in the foreign court, not on a comparison between the size of the foreign award and the size of the potential award in England. The trial judge had failed to refer to issues of comity, and had failed to explain why this was an exceptional case in which the wife should be allowed a second bite of the cherry. The husband and wife had more significant connection with Nigeria than with England, and Nigeria was the natural and appropriate forum for resolution of the wife's claims. No substantial injustice had been done to the wife in Nigeria. The wife's claim was dismissed; although it was plain that she would suffer real hardship in England and Wales, comity commanded respect for the overseas order.

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