The recent English case of Agbaje is a reminder of the remedies available to former wives, whose husbands have sought divorce abroad, if the divorce causes a 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. Finally, after successive appeals, the Supreme Court awarded her a sum of approximately £275,000.
Although this action was brought in England, similar provisions are available in Scotland, to protect Scottish spouses whose husbands try to do them out of their rightful entitlement upon divorce by divorcing them in another country.
The law provides that before a former spouse can bring proceedings for financial provision in a Scottish Court, they must show that the marriage had a "substantial connection with Scotland". The significance of the Agbaje case for Scots lawyers is that Mrs Agbaje's connection with the UK appeared relatively weak. English law has similar provisions. Home for the Agbajes' was Nigeria, and it was not until they separated that Mrs Agbaje moved to England. The Supreme Court avoided this problem by holding that despite the fact that the Agbajes spent the majority of their married life in Nigeria, the "English connections were substantial, if not overwhelming".
Although London remains the forum shopping capital of the world, former spouses with a Scottish connection may well be tempted to seek a second bite of the cherry in Scotland in the event that they are unhappy with their divorce award from a foreign court.
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