CR2-09-11-04-Session1_IMX30_1.mxf

Session: am
Session date: 2009 Nov 04

CASE ID: UKSC 2009/0034
Case name: Agbaje (Respondent) v Akinnoye-Agbaje (FC) (Appellant)
Case summary:
Judgment: The Supreme Court unanimously allowed the wife’s appeal and restored the order of the High Court. The judgment of the Court was delivered by Lord Collins.
Reasons for the judgment: The Court held that Part III is to be applied in light of the purpose of the Act, which was the alleviation of 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 ([71]). In applying Part III, the English courts should not be deciding whether it would be appropriate for an order to be made by a court in England or Wales as opposed to a foreign court. The whole point of Part III is to allow for relief in circumstances where there have already been proceedings in a foreign country ([50]). Relevant to the question of whether an order should be made and, if so, what order, will be a number of factors such as the financial benefit which the applicant has already received, or whether the applicant has failed to take advantage of a right under the foreign law to claim financial relief. The hardship or the injustice which would result if no award were made will be relevant factors, although neither are pre-conditions to an award under Part III ([41]-[44] and [60]-[61]). Although there was no principle that an English court could only make an award that was the “minimum necessary to remedy the injustice” which 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 ([62]-[65]; [72]). 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 ([70]). The amount of financial provision awarded under Part III will depend on all the circumstances of the case. But three general principles should be applied. First, primary 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 ([73]).
Hearing start date: 2009 Nov 03
Hearing end date: 2009 Nov 04