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United Kingdom Supreme Court
You are here: BAILII >> Databases >> United Kingdom Supreme Court >> Agbaje v Akinnoye-Agbaje (Rev 1)  UKSC 13 (10 March 2010)
Cite as:  1 AC 628,  2 FCR 1,  Fam Law 573,  2 All ER 877,  1 FLR 1813,  2 WLR 709,  AC 628,  UKSC 13
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 UKSC 13
On appeal from:  EWCA Civ 1
Agbaje (Respondent) v Akinnoye-Agbaje (FC) (Appellant)
Lord Phillips, President
JUDGMENT GIVEN ON
10 March 2010
Heard on 3 and 4 November 2009
Nigel Dyer QC
(Instructed by Knox and Co)
Timothy Scott QC
(Instructed by Tucker Turner Kingsley Wood and Co)
LORD COLLINS (delivering the judgment of the court)
Matrimonial and Family Proceedings Act 1984, Part III
The background to Part III of the 1984 Act
Part III of the 1984 Act
"(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."
"(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 availability in England and Wales of any property in respect of which an order under this Part of this Act in favour of the applicant could be made;
(h) the extent to which any order made under this Part of this Act is likely to be enforceable;
(i) the length of time which has elapsed since the date of the divorce, annulment or legal separation."
The application for leave
"that that very significant discrepancy, and the very modest amount of the provision made for this wife following a marriage of that length in relation to a case where there appear to be significant assets, is such that, having regard, as I do, to each of the facts and matters set out in section 16(2) of the Act, there are established … substantial grounds for making this application within the meaning of section 13(1)."
The substantive hearing: Coleridge J and the Court of Appeal
(1) To what issue the matters listed in section 16(2) are directed.
(2) What role (if any) forum non conveniens principles or comity have to play in the exercise of the discretion.
(3) Whether the applicant must show exceptional circumstances, or hardship, or serious injustice, before an order can be made.
(4) To what matters the court should have regard in deciding whether, and in what way, to exercise its powers under section 17, and in particular whether there is a principle that the court is limited to making an order which represents the minimum necessary to remedy the hardship or injustice.
The relevance of the section 16(2) factors
Forum non conveniens and comity
"symmetry between the rules relating to stays and anti-suit injunctions on the one hand and the exercise of jurisdiction under section 16 on the other. It is through that prism that section 16 must be viewed in a case like the one before us."
Hardship, injustice, exceptionality and an award of the "minimum extent necessary to remedy the injustice"
"51 … [W]e think that it should be made clear by express statutory provision that the object of the discretion is to provide for the 'occasional hard case'. We consider, therefore, that the court should be given power to entertain an application for a financial provision or property adjustment order notwithstanding the existence of a valid foreign divorce, if in the light of all the circumstances of the case (and in particular certain specified circumstances) the case would otherwise be one where serious injustice might arise. Our present inclination is not to favour any requirement that the applicant must establish the facts of the case to be 'exceptional' since he may well belong to a religious or ethnic group in which it is not uncommon, for example, for a wife to be divorced abroad without having a right to claim financial relief."
"… as a matter of logic it does not follow that hardship is a necessary prerequisite and I doubt that it was open to Cazalet J. [in N v N (Foreign Divorce: Financial Relief)  1 FLR 900] to hold that an applicant must prove some hardship or injustice in order to obtain the court's leave. Parliament might have so legislated, but it did not. The statutory criteria are fully expressed. A case in which the applicant crosses the barriers contained in sections 13 and 16 without proving some specific hardship or injustice is perfectly conceivable."
"2.12 The problem is to find a solution which will enable financial provision after a foreign divorce to be claimed and awarded in appropriate cases, but will not enable it to be claimed or awarded in inappropriate cases …
"2.13 It is here that we find ourselves differing from the Law Commission. They prefer a solution in which there are wide grounds of jurisdiction and in which it is left to the courts, guided by a list of factors to be taken into account, to sift out cases where an award would be inappropriate. We prefer a solution in which there are stricter grounds of jurisdiction and the legislation identifies certain cases as inappropriate in advance. In our view, a system based on rules is likely to be fairer to defenders and less objectionable to other countries than a system which depends almost entirely on judicial self-restraint. We accept that strict rules on jurisdiction may exclude some cases which a judge in his discretion might allow to proceed. A power to award financial provision after a foreign divorce is, however, a new and exceptional one in our law, and we would rather proceed with caution ..."
The proper approach