The Supreme Court has recently delivered a ruling upholding a decision of the English High Court to allow a Nigerian wife further financial provision following a limited award in the Nigerian courts.

Mr and Mrs Agbaje had been married for 38 years. Although Nigerian by birth, both had acquired UK citizenship in 1972 and all five of their children were born here. For the majority of their married life, the parties lived in Nigeria although they retained a home in this country.

They separated in 1999 and Mrs Agbaje returned to London. Mr Agbaje began divorce proceedings in the Nigerian court in 2003 and Mrs Agbaje was awarded a life interest in a property located in Lagos (which had a value of around £86,000) and a lump sum equivalent to £21,000.

Upon the conclusion of the proceedings in Nigeria, Mrs Agbaje returned to London and applied to the court under a statutory provision which allows the Court to consider financial relief where a marriage has been dissolved or annulled overseas. The High Court decided that Mrs Agbaje’s first priority was for a home and ordered a property held in the husband’s sole name to be sold and the net proceeds (equivalent to £275,000) paid to the wife.

The Court of Appeal set aside this order, chiefly on the basis that the parties had a greater connection with Nigeria than England and  that as a consequence, Nigeria was a more suitable jurisdiction  in which Mrs Agbaje’s claims should be heard.

On appeal, the Supreme Court decided unanimously in favour of Mrs Agbaje and restored the original order , finding that “the English connections were substantial, if not overwhelming”. The Supreme Court held that  one of the roles of the statutory provision here in England and Wales was to alleviate the adverse consequences of no , or no adequate,financial provision being made by a foreign court in a situation where the parties had substantial connections with England. It was clear to the Supreme Court that Mrs Agbaje would be subject to a real hardship in this country as a result of the foreign award and the original order of the High Court was restored.

The Supreme Court acknowledged that although each decision in future will be decided upon all the circumstances of the case, three general principles should be applied:

1. Primary consideration should be given to the welfare of the children;
   
2. It will never be appropriate to make an order which gives the  Claimant more than she would have been awarded had all the proceedings taken place within this jurisdiction; and
   
3. Where possible, the order should have the result that provision is made for the reasonable needs of each spouse

The Supreme Court’s decision is an important ruling which sets out where the English court should make a further order following proceedings concluded in a foreign jurisdiction.

However, anyone divorced abroad should note  that this is not simply a mechanism by which to facilitate a ‘second bite of the cherry’ for spouses who think they have been wronged. Potential applicants should be aware that permission needs to be sought from the English court before any application is made and there will be many instances where the connection to this country is not  sufficiently strong and/or the spouse has already received a suitable financial provision  in the other jurisdiction .  The statitory provision is not about ‘topping up’ an existing award but to address insufficient provision made by a foreign jurisdiction.

Regardless of the caveats and cautions made by the Supreme Court, the decision in Agbaje v Akinnoye-Agbaje will undoubtedly give fresh hope to many litigants with a connection to this country, no matter how tenuous, which will undoubtedly lead to an increase in the number of cases of this kind in future.