May 8, 2010
Introduction:-The United Kingdom Supreme Court recently awarded £275,000 to an elderly Nigerian woman living in England who was rendered homeless by a paltry divorce settlement by a Lagos High Court in the case of Agbaje v Akinnoye-Agbaje [2010] UKSC 13.
Introduction:-The United Kingdom Supreme Court recently awarded £275,000 to an elderly Nigerian woman living in England who was rendered homeless by a paltry divorce settlement by a Lagos High Court in the case of Agbaje v Akinnoye-Agbaje [2010] UKSC 13. The court established for the first time that a spouse who cannot ordinarily bring divorce proceedings in England may, in certain cases where the family has assets in the UK, take advantage of the more generous English law approach to divorce settlement to augment a poor overseas award.
Consequently, the judgment grabbed the headlines in the British and international media where it was portrayed as a confirmation of London’s reputation as the “divorce payout capital of the world”.
This reputation, which stems from the fact that an English court can award a divorced spouse as much as half of the family’s worldwide assets, was acknowledged two years ago by the country’s then most senior Family judge, Sir Mark Potter, in a case in which the Court of Appeal approved a record award of £48 million to Beverley Charman, wife of the businessman John Charman.
According to Sir Potter, recent judgments had “raised the aspirations of the claimant hugely”.
Another high profile award was the £24.3 million Heather Mills received in her divorce settlement with estranged husband Sir Paul McCartney.
However, the judgment in Agbaje v Akinnoye-Agbaje has special significance to Nigeria in view of billions of pounds invested in second homes and other assets in the UK by wealthy Nigerians, especially corrupt public officials and their fronts.
The English Connection
The long established pattern of life of the typical Nigerian upper class that has made London Nigeria’s 37th State was set out by the English Court of Appeal in the case of Tom Ikimi v Teresa Ikimi [2001] EWCA Civ 873 as follows:
“The husband is an architect and politician whilst the wife is a lawyer. They ... married in November 1977. In July 1978 they set up a second home in London. Initially they rented in desirable residential areas until purchasing a four bedroomed house in Hampstead in 1982. ... It is fully furnished and cared for by a resident housekeeper. There are cars in the garage.
“All this is available for the use and enjoyment of the family or any of its members when in London. This facility is perhaps of even greater benefit to the children of the marriage. ... All the children were born in London and certainly the three elder children have dual nationality.
“Although the parents decided on primary education in Nigeria the pattern for the boys has been Lambrook followed by the Oratory or Bradfield and St George’s Ascot for [the girl]. [The youngest son’s] years at Lambrook were preceded by two years in a Swiss boarding school. The three older children have all moved on to London University.
“In 1994 the husband was appointed to high political office but between November 1995 and July 1998 the imposition of EU sanctions prevented both the husband and wife from entering this jurisdiction. During that period the children continued their education in this jurisdiction having the use of the family home and the services of the resident housekeeper.
“Shortly after her return to Nigeria the parties separated and the wife ceased her legal practice.”
Hundreds of thousands of other Nigerians, who cannot afford to establish a similar pattern of life in London, have done so in other parts of the UK especially in England and Wales.
Forum Non Conveniens
Where a couple have matrimonial homes in England and in Nigeria, divorce proceedings can potentially be brought in either jurisdiction. For obvious reasons, as was indeed the case in Ikimi v Ikimi, the husband would file a petition for divorce in Nigeria asserting his Nigerian domicile while the wife would file a cross petition in England on the grounds of her habitual residence there.
The forum for the divorce proceedings and the size of the settlement would ultimately depend on the outcome of this dispute. The courts are obliged to apply the forum non conveniens - a legal doctrine whereby a court may refuse to exercise jurisdiction over a matter where there is a more appropriate forum available to the parties.
The doctrine is usually defendant-friendly in consequences and can constitute a practical bar to claims including in divorce proceedings. Thus in most cases, it ensures that proceedings can only be brought in Nigeria as the most appropriate forum.
However, the judgment in Agbaje v Akinnoye-Agbaje has effectively nullified this valuable tactical advantage enjoyed by wealthy Nigerian men.
Agbaje v Agbaje
Mr Olusola Agbaje and Mrs Sikirat Agbaje were both born in Nigeria and have British and Nigerian citizenship. They were married in 1967 had five children, all born in England.
Six years after the marriage, Mr Agbaje returned to Nigeria to qualify as a barrister and set up a legal practice. In 1975 he bought a house in London to provide a home for the children, all of whom apart from the youngest were educated there.
The couple separated in 1999. Mrs Agbaje decided to live permanently in London while Mr Agbaje remained in Nigeria.
Mr Agbaje began divorce proceedings in Lagos in 2003. The family’s assets were about £700,000, of which £530,000 represented two houses in London in Mr Agbaje’s name while the balance represented properties in Nigeria.
Lagos High Court
In 2005, a Lagos High Court granted a decree nisi and awarded Mrs Agbaje a life interest in a property in Lagos (she would be entitled to any rent from the property for the rest of her life but not the capital value of about £86,000) and a lump sum which was the equivalent of about £21,000.
Mr Agbaje, on the other hand, was awarded £616,000, including the two properties in London. The judge rejected Mrs Agbaje’s claims to the London property she lived in on the ground that she had not contributed financially to their purchase.
Mrs Agbaje was unhappy with the award, which meant that she would have to leave the family home in London.
Ironically, the small award by the Lagos High Court meant that Mrs Agbaje was considered poor enough to qualify for legal aid. Thus she was able to challenge the decision in the English courts at the expense of the UK government all the way to the final court in the land.
High Court in London
Mrs Agbaje originally tried to bring divorce proceedings in England but a High Court judge ruled that Nigeria was the proper country to hear the case on the ground of forum non conveniens.
Thus after the proceedings in Lagos, she lodged fresh proceedings in England under Part III of the Matrimonial and Family Proceedings Act 1984. This legislation gives the English courts the power to award a higher settlement after a marriage had been annulled in a foreign country.
Her case was heard in the High Court by Mr Justice Coleridge ([2008] EWHC 3618 (Fam)) who made an order that was intended to enable her to house and maintain herself in London. He ruled that if she gave an undertaking to give up any interest she might have in the Lagos property, Mr Agbaje must pay her a lump sum equal to 65% of the gross proceeds of sale of the London property she lived in (expected to be about £275,000).
This settlement is the equivalent of a 39% award of the family’s assets to Mrs Agbaje. Had the original divorce been heard in England, she would have received at least 50%.
Court of Appeal
Mr. Agbaje then appealed to the Court of Appeal, which agreed with him that the High Court was wrong to overrule the original Lagos settlement. The court rejected Mrs Agbaje’s claim on the ground of forum non conveniens.
Lord Justice Ward, dismissing her case, pronounced that “sadly, compassion is not the test” but added that he did “feel sorry” for Mrs Agbaje’s “parlous plight”.
The relevant provisions of the 1984 Act required Mrs Agbaje to show "exceptional circumstances" before an English court would hear her application to overturn the Lagos judgment. Thus Justice Ward held that the fact that a foreign divorce settlement was less generous than what would be awarded in England was not sufficient.
According to him: "If mere disparity ... in the awards becomes the principal criterion for the exercise of the … discretion then what was supposed to be the exception will soon become the rule as disaffected wives flee the less generous jurisdiction."
Supreme Court
Mrs Agbaje took her case to the UK Supreme Court (the successor to the House of Lords as the final court of appeal) in November last year. The court unanimously allowed the appeal and restored the order of the High Court.
It held that an English court was not required to apply a forum non conveniens test when considering whether it would be appropriate to make an order for financial relief following a divorce which had been granted in a foreign jurisdiction.
Delivering judgement on 10 March 2010, Lord Collins said that the Court of Appeal had wrongly applied forum non conveniens in that case where the English connections were “substantial, if not overwhelming”.
He noted that “the court will not lightly characterise foreign law, or the order of a foreign court, as unjust” but went on to hold as follows:
“The amount of financial provision would depend on all the circumstances of the case and there was no rule that it should be the minimum amount required to overcome injustice.
“The following general principles should be applied. First, primary consideration had to be given to the welfare of any children of the marriage. Second, it would never be appropriate to make an order which gave the claimant more than she or he would have been awarded had all the proceedings taken place within this jurisdiction. Third, where possible, the order should have the result that provision was made for the reasonable needs of each spouse. Subject to those principles the court had a broad discretion.
“The reasons why it was appropriate for an order to be made in England were among the circumstances to be taken into account in deciding what order should be made. Where the English connections of the case were very strong there might be no reason why the application should not be treated as if it were made in purely English proceedings.”
Conclusion
It is important to remember that the United Kingdom comprises England, Scotland, Wales (which together constitute Great Britain) and Northern Ireland. The divorce laws outlined above apply only to proceedings in England and Wales and Northern Ireland, because Scotland has a separate legal system.
Thus to take advantage of the judgment in Agbaje v Akinnoye-Agbaje, an applicant must demonstrate a connection to England or Wales or Northern Ireland. This should not be a problem in a typical Nigerian big-money divorce case.
However, where there is such a connection, the worldwide assets of the family (subject to issues of availability and enforceability) will be available for division between the parties.
Such divorce proceedings can aid cross jurisdictional anti-corruption recoveries. Where a former or serving pubic official or any of their known associates is involved in such proceedings the Nigerian government is entitled to intervene with a view to recovering any stolen public funds.
The UK government will be obliged to freeze and confiscate any illicit assets under the Proceeds of Crime Act 2002 (External Requests and Orders) Order 2005 once civil recovery proceedings or criminal investigation or prosecution has commenced in Nigeria.
googletag.cmd.push(function() { googletag.display('comments'); });
googletag.cmd.push(function() { googletag.display('content1'); });
googletag.cmd.push(function() { googletag.display('content2'); });