The Agbaje Case: How will the level of provision be determined?

Agbaje v Agbaje: How the English Courts Determine Financial Provision After an Overseas Divorce

Under Part III of the Matrimonial and Family Proceedings Act 1984, individuals who have divorced abroad may apply for financial relief in the English courts - provided they have a significant connection to England or Wales. This provision also applies to civil partnerships.

The landmark case of Agbaje v Agbaje [2010] UKSC 13 clarified how courts should approach these applications and under what circumstances financial provision may be granted. 

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Background of the agbaje case:  

• Mr and Mrs Agbaje were married for 38 years, both Nigerian by birth.
• They had met in England in the 1960s and acquired UK citizenship in 1972.
• All five of their children were born in England and in 1975, Mr Agbaje had bought a property in England in which their children stayed with a nanny.   
• For most of their married life, Mr and Mrs Agbaje lived in Nigeria, although four out of five of their children were educated in England. Upon separation in 1999, Mrs Agbaje moved to their property in England.  

In 2003, Mr Agbaje issued divorce proceedings in the Nigerian courts in which Mrs Agbaje sought ancillary relief. The Nigerian court awarded her a life interest in a property in Lagos (capital value of around £86,000) and a lump sum of approximately £21,000.  

Beliving this to be inadequate, Mrs Agbaje then sought relief under Part III of the Matrimonial and Family Proceedings Act 1984. The High Court granted her leave – as required under Part III – and ultimately ordered that she should receive a lump sum equal to 65% of the sale proceeds of their property in England (equivalent to around £275,000) on condition that she relinquish her life interest in the Lagos property. The award represented 39% of the assets.  

The Court of Appeal set aside the whole of the English award on the ground that the High Court had given insufficient weight to the connections of the case with Nigeria, however, the Supreme Court later unanimously allowed the wife’s appeal and restored the order of the High Court.  

Supreme Court Ruling: Key Clarifications

First, it was held that Part III is to be applied to alleviate the adverse consequences of no or inadequate financial provisions being made by a foreign court in a situation where the parties had substantial connections with England. Thus, in applying Part III, the English courts should not be deciding whether it would be appropriate for an order to be made by a court in England or Wales as opposed to a foreign court. Instead, the focus of Part III is to alleviate hardship caused by inadequate financial provision in a foreign divorce, where there is a substantial connection to England.

Second, in deciding whether an order should be made, and if so, what order, the Supreme Court held that several factors will be relevant. This includes:

• The financial benefit which the applicant has already received
• Whether the applicant has failed to take advantage of a right under the foreign law to claim financial relief
• The hardship or injustice which would result if no award were made

Limits of relief

It was also made clear that the intention of the legislation was not to allow a simple “top-up” of the foreign award to equate with an English award in every case. Instead, the strength of the connection with England should be considered to determine whether it is appropriate to use Part III to “top-up” the award. If the English connections are strong, however, it may be appropriate to do so.  

General principles for determining provision

Although the amount of financial provision awarded under Part III will depend on all the circumstances of the case, three general principles will be applied:  

1. Primary consideration to be given to the welfare of any child of the marriage.  

2. The award must not exceed what would have been granted had the case been heard entirely in England.

3. The order should have the result that provision is made for the reasonable needs of each spouse, where possible.