This bright idea has been laid to rest.
In some quarters there remains an unswerving belief that divorced women, if they are unhappy with their financial settlements, should come to London. If they come to London, no matter where they live the world, justice will at last be done.
That is how the thinking goes – but it is an illusion, and it has always been an illusion. This week, the Court of Appeal laid the notion firmly to rest. The learned Judges who did so may as well have been wearing black caps as they sounded a death knell to Part III of the Matrimonial and Family Proceedings Act 1984. a piece of legislation specifically designed to overcome injustice and extreme hardship which may be suffered by an applicant in foreign jurisdictions.
On 20 January 2009, the Court of Appeal handed down its judgment on a piece of long-running litigation between a Nigerian-born husband and wife, who also happen to be British citizens. Mr and Mrs Agbaje are aged 71 and 68 years old respectively. They married in 1967 and had five children, all of whom were born in Britain. They separated in 1999 and divorced in Nigeria.
The couple had lived in both Nigeria and England during their marriage. Mr Agbaje qualified in London as a Barrister and his practise is in Nigeria. Mrs Agbaje settled in England in 1999; she tried to proceed with the divorce here, but the Judge, Mr Justice Ryder, found Nigeria was the proper country in which to hear this case.
So after a 40-year marriage Mrs Agbaje applied for, and received, a financial settlement in Nigeria, seeking an interest in a home in Nigeria and in London. The case was heard by a Nigerian court, which applied Nigerian law. The result: she was left with just under £7,000, and only the right to live in a Nigerian house that neither of them wanted. Mr Agbaje retained assets worth £616,000, including ownership of two properties in London. There was also the income differential. To any English family lawyer, used to applying English family law, it was an appalling injustice.
In England, Mrs Agbaje’s parlous finances meant that she was entitled to legal aid. She successfully applied, under Part III of the Matrimonial and Family Proceedings Act 1984, for leave to proceed in England. She claimed that she had suffered injustice and hardship following her divorce in a foreign country, and asked for her financial position to be considered again.
Following a fully contested hearing, Mrs Agbaje was given leave to proceed by Mr Justice Munby, notwithstanding Mr Justice Ryder’s finding that Nigeria was the proper forum for the case. Mr Agbaje went to the Court of Appeal, appealed Mr Justice Munby’s decision, and lost.
The case proceeded. It was heard by another judge, Mr Justice Coleridge, who awarded Mrs Agbaje a lump sum of £275,000. This represented less than half of the assets. Mrs Agbaje would certainly have received half at least, had the original divorce been heard in England.
Mr Agbaje went to the Court of Appeal, once again, to appeal against the ruling. This time, Mrs. Agbaje has lost her entire case. (Because she is on legal aid, it also means that all her costs have now been paid by us, the taxpayers.)
Whether or not the outcome was an injustice, stated the Court of Appeal, depended upon whose “end of the telescope” one looked from – the husband’s when Mr Justice Ryder had found the case should proceed in Nigeria, or the wife’s. However I believe, that when he took dual nationality, Mr Agbaje also voluntarily assumed the concurrent risk of dual jurisdictional divorce.
So, what were the Judges thinking? I mean this question to be taken at face value. Was Mr Justice Ryder correct to stay proceedings in England? Was Mr Justice Munby correct to give Mrs Agbaje leave to proceed with her Part III claim? Was every judge, (including the judges of the first Court of Appeal) right, and was only Mr Justice Coleridge wrong? I think the Judges were actually all going in tandem in the same direction – until the second Court of Appeal decided differently.
“Sadly, compassion is not the test”, said Lord Justice Ward, as he dismissed her case in its entirety and left the elderly British citizen Mrs Agbaje penniless and homeless in this country after years of what I feel was increasingly desperate litigation – litigation he described as ” extremely luxurious”.
Lord Justice Ward asked a number of complicated, technical questions which, he felt, had been lacking from the judgment of Mr Justice Coleridge – and which had led Mr Justice Coleridge alone, “to fall into the trap” and err in law. He reasoned that the error had occurred because Mr Justice Coleridge had assumed that Mrs. Agbaje would succeed in her application, as she had already persuaded Mr Justice Munby to grant her leave to proceed and his decision had been upheld by the Court of Appeal. So the Court of Appeal has now found by tortuous logic that Mr Justice Coleridge had insufficiently directed himself as to whether she had a claim at all irrespective of leave having been granted following a fully contested application.
It is interesting to compare the outcome of Mrs Agbaje’s failed application with the remarks of Lord Justice Thorpe in Ella v Ella – a couple with dual British and Israeli nationality who spent most of their married life in this country. The husband and wife had signed a pre-nuptial agreement outlining all issues relating to property were to be governed by Israeli law. The agreement stated that upon separation of assets the spouse that generated them should take on the ownership – effectively entitling the husband to a major share of the wealth.
In this case – despite the wife’s appeal – the case was remitted to the Israeli courts, having found that the foreign court was where the case should properly be heard. Lord Justice Thorpe however, reminded the parties of the operation of Part III for the future. He clearly thought it an appropriate course of action. So, is the Court of Appeal in conflict?
The Court of Appeal has certainly made it clear that it will not open the floodgates to dissatisfied spouses, when those spouses have a greater connection with a Court in another country. Even if a spouse manages to clear the first hurdle, and obtain leave to proceed under Part III, success is still not guaranteed. Even if a connection with England can be fully established, and this particular case involved a British citizen living in her home in England, and other property in England, the court will clearly be slow to replace a foreign court’s order in all but the most exceptional of circumstances, in which “serious injustice would otherwise be done”
The case of Agbaje sends out a strong message loud and clear. To my mind it is primarily an acutely political message. I do not doubt that the Court has been stung by adverse judicial comments elsewhere in the world about English Courts’ colonialist attitudes, (when in fact they aren’t) and lately by media comments that ‘London is the divorce capital of the world.’ This latest judgement will shake off the idea that English Courts are the “thought police” of foreign courts or consider they are superior to foreign courts. But consider also the political standpoint of us the taxpayers, who have funded all these lengthy and expensive proceedings and may now wholly unnecessarily be funding Mrs Agbaje’s home and living expenses for the rest of her life?
I for one, find it all quite sad. I like the fact that in England we are not afraid to administer justice and put right an obvious wrong, particularly if the foreign law does not permit remedies to our British citizens that we have available in this country – such as transfer of property orders.
Our bravery and integrity, our high standards of fairness and our application of justice equally to all our citizens is the reason I am a lawyer and represents everything I stand for in my profession.