Marilyn Stowe Blog

News: Judge classifies international divorce as ‘needs’ case

In a recently published divorce case, the Hon Mr Justice Coleridge following the Supreme Court judgement in Agbaje v Akinnoye-Agbaje [2010] UKSC 13) ruled that an overseas divorce case was a needs case only under Part III of the Matrimonial and Family Proceedings Act 1984.

Although there was no principle that an English court could only make an award that was the “minimum necessary to remedy the injustice” – something that would otherwise occur, it was equally not the intention of the legislation to allow a simple “top-up” of the foreign award so as to equate with an English award in every case. If the connection with England is not strong and a spouse has received adequate provision from the foreign court, it will not be appropriate for Part III to be used to “top-up” the award. If the English connections are strong, however, it may be appropriate to do so.

Lord Collins, delivering judgement in Agbaje v Akinnoye, distinguished between cases:

“…when almost all relevant connecting factors are with England. In those circumstances, there would be no reason not to apply English law so as to give the same provision for the wife as she would have obtained had there been divorce proceedings inEngland”

..and other cases:

“It is not the purpose of Part III to allow a spouse (usually, in current conditions, the wife) with some English connections to make an application in England to take advantage of what may well be the more generous approach in England to financial provision, particularly in so-called big-money cases.”

The amount of financial provision awarded under Part III will depend on all the circumstances of the case. There are three general principles. First consideration should be given to the welfare of any child of the marriage. Second, it will never be appropriate to make an order which gives the claimant more than she or he would have been awarded had all proceedings taken place within this jurisdiction. Third, where possible the order should have the result that provision is made for the reasonable needs of each spouse

Mr Justice Coleridge considering the needs of the wife and child awarded a lump sum of £3 million to the wife of the couple, who had married and divorced in a foreign jurisdiction.

The four and a half year marriage had produced one son, now four, so the judge also ordered child maintenance of £50,000 per year, which had to be secured as the father was in the habit of regular travel.

The wife, worth approximately £7 million, had some connections to the UK and owned a flat in Knightsbridge. The husband, by contrast, worth approximately £34 million had no connections to the UK.

Photo by nomsaleena under a Creative Commons licence