Another nibble of the cherry

The recent English case of Agbaje v Agbaje [2010] UKSC 13 is a reminder of the remedies available to former wives, whose husbands have sought divorce abroad, if the divorce causes real financial hardship and serious injustice to the former wife.

Mr and Mrs Agbaje are of Nigerian origin and had been married for 38 years. Although they owned a house in England and took British citizenship in 1972, their home and life was mainly in Nigeria.

They separated in 1999 when Mrs Agbaje moved to England. The parties brought cross actions for divorce, Mr Agbaje’s in Nigeria and Mrs Agbaje’s in England. The Nigerian action prevailed and Mrs Agbaje was awarded the use of a Nigerian property for life and a lump sum payment of approximately £21,000.

After divorce had been granted in Nigeria, Mrs Agbaje raised proceedings for financial provision in England under the Matrimonial and Family Proceedings Act 1984 (the MFPA), where she received an award worth approximately £275,000.

The Court of Appeal overturned the award, commenting that “it would not be appropriate to give Mrs Agbaje another nibble of the cherry”. The Supreme Court thought otherwise and restored the order from the court of first instance.

Distinctive scheme

The Scottish provisions, which are worded differently from the English equivalents, are found in part IV of the MFPA. The purpose of part IV is to place the parties, in so far as is reasonable, in the financial position in which they would have been had the divorce been dealt with in Scotland.

An application for an order for financial provision after a foreign divorce can be made to either the sheriff court or the Court of Session. Before the court can exercise its discretion the applicant needs to satisfy the following jurisdictional and other conditions:

• The applicant was habitually resident or domiciled in Scotland on the date of the application.
• The other party to the marriage was habitually resident or domiciled in Scotland, either when the parties last lived together or on the date of the application.
• The other party to the marriage was, on the date of the application, either an owner or tenant of, or had a beneficial interest in, property in Scotland which had, at some time, been the matrimonial home.
• The foreign divorce is one which is recognised under Scots law.
• The other party initiated the proceedings for divorce in the foreign jurisdiction.
• The application is made within five years of divorce.
• A court in Scotland would have had jurisdiction to entertain an action of divorce had it been brought in Scotland immediately before the foreign divorce took effect.
• The marriage had a substantial connection with Scotland.
• Both parties are living at the time of the application.

If these conditions are satisfied the court has the same powers as if the application for financial provision was brought under the Family Law (Scotland) Act 1985, although subject to some modifications:

• Interim periodical allowance can be awarded (a) in the event that it appears from the applicant’s averments that an order for financial provision is likely to be made; and (b) if such an interim award is necessary to avoid hardship on the part of the applicant.
• The court is required to place the parties in the same financial position in which they would have been had a Scottish divorce been disposed of on the date of the foreign divorce.
• The court must have regard to any order for financial provision or for transfer of property made by the foreign court.

Making connections

Although there are substantial differences in the wording of the Scottish and English provisions of the MFPA, there are two key points for Scottish lawyers to take from the Supreme Court’s decision:

• 1. The Scottish provisions of the MFPA require that “the marriage had a substantial connection with Scotland”. In Agbaje the Supreme Court took the view that, despite the fact the parties spent the majority of their married life in Nigeria, “English connections were substantial, if not overwhelming”, and thus the court had jurisdiction.
• 2. There is no rule that the amount of financial provision should be the minimum amount to overcome injustice. Each case will turn on its own facts.

Although London remains the forum shopping capital of the world, former spouses with a Scottish connection may well be tempted to seek a second nibble of the cherry in Scotland in the event that they are unhappy with their divorce award from a foreign court.

• Scott Cochrane, partner in family law, Brodies LLP