COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE (FAMILY DIVISION)
THE HON. MR JUSTICE COLERIDGE
Strand, London, WC2A 2LL
B e f o r e :
THE RT HON. LORD JUSTICE LONGMORE
THE RT HON. LORD JUSTICE JACKSON
| Olusola Akinnoye Agbaje
|- and -
|Sikirat Abeni Akinnoye Agbaje
Mr Nigel Dyer Q.C. and Miss Eleanor Harris (instructed by Knox & Co) for the respondent
Hearing dates: 8th October 2008
Crown Copyright ©
Lord Justice Ward:
"Upon the applicant agreeing and undertaking to the court to:
A. relinquish forthwith any interest she may have in plot 2 Tin Can Island Lagos, Nigeria and, in particular, her life interest in the said property created by order of Nicol-Clay J in the High Court in Lagos, Nigeria on 2nd June 2005; and
B. execute all documents necessary when called upon to do so to effect (i) the termination of her life interest and/or (ii) the transfer of any interest she may have in the said property to the respondent;
It is ordered that:-
1. The respondent shall pay or cause to the be paid to the applicant a lump sum equal to 65% of the gross proceeds of sale of 27 Lytton Road, New Barnet, upon completion of the sale of the said property.
2. Pursuant to the lump sum order at paragraph 1 above, 27 Lytton Road, New Barnet shall be sold forthwith on the open market
3. The applicant's claims for a periodical payments order and property adjustment order are dismissed."
Mr Olusola Agbaje, the respondent in the court below, seeks permission to appeal. Although the parties' marriage has been dissolved I shall for convenience, and I do hope without causing offence, call Mr Agbaje "the husband" and Mrs Agbaje "the wife". Wilson L.J. adjourned that application to be heard on notice with the appeal to follow if the application were granted.
The factual background
The divorce proceedings
"4. There is no evidence that substantial justice cannot be obtained by the wife in the Courts of Nigeria.
9. I cannot say that there is cogent evidence that England is the natural forum for the decision-making process in relation to these parties' divorce "
She did not seek to appeal, but, as Munby J. was later to say, and I agree,
"Ryder's reasoning and conclusions are unassailable. His decision was virtually inevitable."
Ryder J. did, however, adjourn the husband's application for a stay apparently at his request. So the Nigerian proceedings went ahead in Lagos.
"6. It seems to me that the only matter which at the end of the day brings this case potentially within the ambit of the 1984 Act is what on the face of it is the very considerable discrepancy indeed between the aggregate value of what this Court would consider to be the relevant matrimonial assets and the actual economic value to the wife of the provision which was made for her following, I emphasise, a marriage of thirty-two years.
7. I am persuaded by Miss Harris that that very significant discrepancy, and the very modest amount of provision made for this wife following a marriage of that length in relation to a case where there appear to be significant assets, is such that, having regard, as I do, to each of the facts and matters set out in section 16(2) of the Act, there are established, as I am satisfied there are established, substantial grounds for making this application within the meaning of section 13(1)."
Part III of the Matrimonial and Family Proceedings Act 1984
"12 Applications for financial relief after overseas divorce etc
(a) a marriage has been dissolved in an overseas country, and
(b) the divorce is entitled to be recognized as valid in England and Wales,
either party to the marriage may apply to the court in the manner prescribed by rules of court for an order for financial relief under this Part of this Act.
13 Leave of the court required for applications for financial relief
(1) No application for an order for financial relief shall be made under this Part of this Act unless the leave of the court has been obtained in accordance with rules of court; and the court shall not grant leave unless it considers that there is substantial ground for the making of an application for such an order.
(2) The court may grant leave under this section notwithstanding that an order has been made by a court in a country outside England and Wales requiring the other party to the marriage to make any payment or transfer any property to the applicant or a child of the family.
(3) Leave under this section may be granted subject to such conditions as the court thinks fit.
15 Jurisdiction of the court
(1) Subject to subsection (2) below, the court shall have jurisdiction to entertain an application for an order for financial relief if any of the following jurisdictional requirements are satisfied, that is to say
(a) either of the parties to the marriage was domiciled in England and Wales on the date of the application for leave under section 13 above or was so domiciled on the date on which the divorce obtained in the overseas country took effect in that country; or
(b) either of the parties to the marriage was habitually resident in England and Wales throughout the period of one year ending with the date of the application for leave or was so resident throughout the period of one year ending with the date on which the divorce obtained in the overseas country took effect in that country; or
(c) either or both of the parties to the marriage had at the date of the application for leave a beneficial interest in possession in a dwelling-house situated in England or Wales which was at some time during the marriage a matrimonial home of the parties to the marriage.
16 Duty of the court to consider whether England and Wales is appropriate venue for application
(1) Before making an order for financial relief the court shall consider whether in all the circumstances of the case it would be appropriate for such an order to be made by a court in England and Wales, and if the court is not satisfied that it would be appropriate, the court shall dismiss the application.
(2) The court shall in particular have regard to the following matters
(a) the connection which the parties to the marriage have with England and Wales;
(b) the connection which those parties have with the country in which the marriage was dissolved ;
(c) the connection which those parties have with any other country outside England and Wales;
(d) any financial benefit which the applicant has received, or is likely to receive, in consequence of the divorce by virtue of any agreement or the operation of the law of a country outside England and Wales;
(e) in a case where an order has been made by a court in a country outside England and Wales requiring the other party to the marriage to make any payment or transfer any property for the benefit of the applicant the financial relief given by the order and the extent to which the order has been complied with or is likely to be complied with;
(f) any right which the applicant has, or has had, to apply for financial relief from the other party to the marriage under the law of any country outside England and Wales and if the applicant has omitted to exercise that right the reason for that omission;
(g) the availability in England and Wales of any property in respect of which an order under this Part of this Act in favour of the applicant could be made;
(h) the extent to which any order made under this Part of this Act is likely to be enforceable;
(i) the length of time which has elapsed since the date of the divorce
17 Orders for financial provision and property adjustment
(1) Subject to section 20 below, on an application by a party to a marriage for an order for financial relief under this section, the court may
(a) make any one or more of the orders which it could make under Part II of the [Matrimonial Causes] 1973 Act if a decree of divorce had been granted in England and Wales, that is to say
(i) any order mentioned in section 23(1) of the 1973 Act (financial provision orders); and
(ii) any order mentioned in section 24(1) of that Act (property adjustment orders);
18 Matters to which the court is to have regard in exercising its powers under section 17
(1) In deciding whether to exercise its powers under section 17 above and, if so, in what manner the court shall act in accordance with this section.
(2) The court shall have regard to all the circumstances of the case, first consideration being given to the welfare while a minor of any child of the family who has not attained the age of eighteen.
(3) As regards the exercise of those powers in relation to a party to the marriage, the court shall in particular have regard to the matters mentioned in section 25(2)(a) to (h) of the 1973 Act
(6) Where an order has been made by a court outside England and Wales for the making of payments or the transfer of property by a party to the marriage, the court in considering in accordance with this section the financial resources of the other party to the marriage or a child of the family shall have regard to the extent to which that order has been complied with or is likely to be complied with."
The judgment under appeal
"However, time is now short and whilst I will set out my main reasons for deciding as I do in this judgment, I may supplement it with further reasons and with references to the law should it be required and necessary for any purpose."
The judgment was indeed referred back to him and when he approved it he added this note:
"I have in the end only slightly tidied up this judgment because the lack of a full recorded transcript and to make it read better. I have however slightly fleshed out the reasoning as to the final calculations "
"However, there is one advantage and that is that I can take as my starting point the long and careful judgment of Munby J. In it he has, in his usual considered and thorough manner, set out the whole scene and background for this hearing and it makes it unnecessary for me to give a long judgment today.
It is important to note that the Court of Appeal upheld this order
In respect of the relevant law, I am indebted to Munby J, who with his customary clarity set out the law and in particular the leading case of Holmes v Holmes from which judgment he cited large chunks. I do not therefore need to labour this judgment with a further recitation of relevant extracts."
It is quite apparent that he derived considerable support from that judgment stamped, as he saw it, with the approval of this Court. What I shall have to consider is whether he placed too much reliance upon it.
"There are two issues: -
(i) first, whether this is a case in which it is appropriate (in the sense of that word in section 16) for there to be any further revision. And, if so:
(ii) what further provision should be."
"The husband says that this is no more or less than a second bite of the cherry, that the application must fail, because there have been proceedings already in Nigeria. The wife accepts that in a sense it is a second bite of the cherry but that she is entitled to succeed because in the Nigerian proceedings she was afforded only the merest of nibbles and cannot live here on what she has."
"The other side of the coin, advanced by the wife, mainly relies on the way on Munby J expressed the position; namely that there would be a very significant risk of real hardship if the court refused to make any provision and that it would be draconian to shut the wife out."
"The parties have a long-standing and real connection with the UK, its culture and way of life. They are British citizens. All the children are British and were born here. The wife is unquestionably resident here and has strong connections here I accept that the wife has spent the vast majority of her time here in the period from 1999-2005. Apart from that, the parties bought two properties here, one in 1975 and one in 2002. The children were all educated here
In my judgment the wife has established that it is appropriate for the English court to intervene where she has been resident here since 1999 and where I am satisfied that she will continue to make her main home here where she has her doctor and English state benefits. I am satisfied that she is not misleading the court with a false case and that this is an appropriate case for an order despite the Nigerian proceedings."
"The Lytton Road property is worth £425,000, whilst Windmill Drive (in respect of which there has been a finding that it was bought for the youngest child) is worth approximately £195,000. The properties in Nigeria are worth £86,000 each and the wife has her land at Ejigbo worth £8,639 and maybe more. Looking at the assets overall there is approximately £700,000 [making allowance for the mortgage on Windmill Drive] ... The wife's income was opaque; she has her state pension and pension credit and her Nigerian pension which comes to £600 or thereabouts. She has outgoings of approximately £1,000 per calendar month.
The husband is a barrister; he is 71 and cannot continue to work much longer. His income in Nigeria, whilst he works, is significant at £3,600 a month. He may carry on for a year or two to cover his debts."
"Is that all? I think she needs a small further capital sum to supplement her income and provide for her when she cannot work. In that context I look at her Lagos property. Both parties have said to the court with the utmost courtesy that it is a matter for the court. Both urge Tin Can Island on the other as neither wants it." [Earlier in the judgment he had said this: "In the course of proceedings I suggested that it would be more practical if this property could revert back to the husband, given that he is most certainly resident in Lagos. This suggestion is taken up and accepted swiftly by the wife; it fits in with her plans. Overnight the husband came up with an alternative suggestion; rather than he get the property and have the ability to sell it that he would cause the property to be transferred absolutely to the wife. She would then be in a position to do with it what she chooses and either sell it or let it. He is happy for her to have the entirety of this property by way of a supplement to the provision made for her in Lagos."] "It could be sold, in which case it could, in theory, generate £86,000 or maybe more than that. It makes sense, given the husband's residence and so it is more appropriate for the husband to have this property as his own. The wife should execute whatever documents necessary to give up her life interest and the order should record (or if necessary there is to be a declaration) that she no longer has any interest, or right to visit it. What figure should I order the transfer at? I have decided £50,000. The wife should therefore exit these proceedings with a total of £275,000 sterling payable out of the proceedings of 27 Lytton Road and this should be expressed as being 65% of the gross sale value of the property. It is possible that if this application had been an English ancillary relief application, heard here from first to last, the wife would have done better."
Discussion and analysis
"Reasonable maintenance for the respondent is that that would ensure to her a queen treatment. It should be one that would afford her the opportunity of a trip to England twice a year for holidays. The least the court should do therefore is award to the respondent her prayer for the sum of # 10M. It is a lump sum, which the respondent has to spend for the rest of her life. And it is not supposed to be bare existence. It must be one that will ensure the queen treatment her husband got her used to."
As for her case that the properties were jointly owned, the argument was that:
"The arrangement between her and the petitioner was that the petitioner would be using his own money to develop the properties while the respondent would spend her own money to provide basic needs of the family."
"The respondent is seeking an order that the properties listed in the answer and cross-petition are jointly owned by her and the petitioner and that they be settled on her.
The court under section 72 of the Matrimonial Causes Act has wide powers to order settlement of property and the nature of the order to be made, the exercise of the court's discretion is unfettered and should be exercised judiciously and the court may make such order as it thinks just and equitable with respect to the application for the benefit of all or any of the parties.
The respondent/cross-petitioner gave evidence to the fact that she wants the court in London to determine her ancillary relief. She gave evidence to the fact that all the properties were owned jointly by them and she contributed towards their acquisition by indirect contributions. She stated further that there is a mortgage and the petitioner maintains the property.
The position of the law is that where issues are joined, evidence must be given, the respondent has given evidence, and she cannot at this stage turn around to say her auxiliary (sic) relief should be determined by the English court, the court has a duty to determine all the issues in controversy between the parties.
As regards the properties in England the justice of this matter deserves that the property should remain in the name of the petitioner, the respondent testified that there is a mortgage and the petitioner is still maintaining the property at Lytton Road. The petitioner testified he had bought one for his daughter and the other a transit home for his children, it was never a matrimonial home, and the documents are in his name, the respondent failed to prove by evidence her contributions towards their acquisitions, the claims in respect of these two properties are refused and dismissed.
Section 70(1) of the Matrimonial Causes Act provides for maintenance of a party to a proceedings and the court must have regard to the means, earning capacity, conduct of the parties and other relevant factors, the burden is therefore on the respondent to discharge, she must prove the earnings and means of the petitioner, the respondent in this case stated the petitioner can afford the sum, that she wants to be compensated, that she has spent her whole life for the family.
From the facts before me it is my view that the interest of justice will be best served in this case by granting the award of the sum of five million Naira as adequate compensation for the sustenance of the respondent in view of the various responsibilities of the petitioner as against his income."
The gist of the submissions made to this court
The proper approach to this problem
(1) What is the proper scope and role of the application for leave and what is the essential difference between that application and the hearing of the substantive application?
(2) If, as I find to be necessary, one must give section 16 a purposive construction, what is the purpose to be served by this Act?
(3) What account should be taken, if any, of considerations of comity and the rules of forum conveniens?
(4) What guidance is there to assist in the determination of when it is "appropriate" to order financial relief?
The first question: the permission stage and the difference with the substantive application
"I hope that submissions will be measured in hours not days. An appeal will be rare and the appellate court slow to interfere."
I would prefer to measure submissions in minutes not hours but otherwise endorse my Lord's expectations and admonitions.
"As my Lord, Simon Brown L.J. has pointed out, in the field of judicial review once leave is granted on an ex parte application, an attempt to discharge inter partes is much discouraged: see the Rules of the Supreme Court, Ord 53, R. 14(4) at p. 899 of the Supreme Court Practice. It must be questioned whether the present practice in the Family Division does not lead to waste of costs. Rule 3.17 of the Family Proceedings Rules 1991 provides for the ex parte application where leave is sought under Part III. A subsequent application to set aside is not specifically provided for under the rules but, in my experience, such applications have been commonplace. There may be good arguments for moving at once to the inter partes hearing, which would test at once whether or not leave in principle is contested and assist the court to determine its substance."
"44. Accordingly, a respondent should only file submissions at this early stage [the application for permission to appeal] if they are addressed to the point that the appeal would not meet the relevant threshold test or tests, or if there is some material inaccuracy in the papers placed before the court. By this phrase we mean an inaccuracy which might reasonably be expected to lead the court to grant permission when it would not have done so if it had received correct information on the point.
45. If, on the other hand, the respondent wishes to advance submissions on the merits of the appeal (as opposed to the question whether it will pass the relatively low threshold tests for permission) the appropriate time for him to do so is at the appeal itself, if the matter gets that far. In general it is not desirable that respondents should make submissions on the merits at the permission stage, because this may well lead to delay in dealing with the permission application and take up the resources of the appeal court unnecessarily.
46. Respondents will not be prejudiced at the appeal itself by having refrained from filing or making submissions at the permission stage, since this is essentially a 'without notice' procedure."
I place particular emphasis on that last sentence.
"The issue before the court on the hearing of an application for leave will be whether the applicant has established a substantial ground for the making of an application. Essentially this will involve the court in estimating, on the basis of the applicant's uncontroverted statements, his prospects of success in satisfying the court that it would be appropriate for an order for financial relief to be made. The essential difference between the application for leave and the hearing of the substantive application will be two-fold. First, on the application the court will normally only have one side of the story before it, and will have to proceed on the basis of the applicant's evidence alone; on the hearing of the substantive application the court will hear both sides (unless the respondent decides not to attend). Secondly, the burden on the applicant will inevitably be somewhat lower at the stage of the application for leave than will be the case on the hearing of the substantive application. At the first stage the applicant will merely have to satisfy the court that there is 'substantial ground' for making the application; at the final stage he will have to satisfy the court that it is in all the circumstances appropriate that an order be made."
The second question: what is the purpose of this legislation?
"Serious injustice might be caused to persons who reasonably assumed that the financial consequences of divorce had been conclusively regulated according the law of a foreign country if the other party was able to re-open the matter here all the more so if the parties had very little or real connection with this country," [paragraph 1.3 of the report, with emphasis added by me].
Hence it was decided to reject giving the court virtually unfettered discretion in favour of adopting "a more cautious approach": paragraph 1.6.
"48. the proposal should be concerned primarily to give a remedy in those exceptional cases where a spouse, usually the wife, has been deprived of financial relief in circumstances where an English court might be driven to hold that it would be unjust to recognise the foreign decree. It follows that we consider the mischief at which the legislation should be aimed to be a narrow one. We do not think, in the absence of any international consensus on the principles which should govern financial provision, that the English courts should be unnecessarily exposed the problems to which we have referred above.
A footnote then refers one back to paragraphs 22 26 which dealt with the risks of forum shopping , the problems arising when the wife was able to make her claim for financial relief in Ruritania and in fact did so but either failed to obtain any order, or, as in the case before us, obtained an order which she thought was inadequate , the problems arising where conduct may preclude an order in favour of a 'guilty' party  and problems where there is no power to order capital provision. Paragraph 48 continues:
In particular we do not think that it would be appropriate to encourage applications to the courts of this country inviting them to act, in effect, as a court of appeal from courts of another country.
"51. ... In the general formulation of the proposed discretion [to allow the application only when it is appropriate], we think that it should be made clear by express statutory provision that the object of the discretion is to provide for the "occasional hard case". We consider, therefore, that the court should be given the power to entertain an application if in the light of all the circumstances of the case the case would otherwise be one where serious injustice might arise."
The emphasis is added by me.
" the purpose of this Act is generally apparent, namely, that it is there to remit hardships which have been experienced in the past in the presence of a failure in a foreign jurisdiction to afford appropriate financial relief. The obvious cases are those jurisdictions where there simply are not any provisions to grant financial relief to wives or children or, maybe, husbands and children. In such cases, although the dissolution of the marriage has taken place in a foreign jurisdiction according to foreign laws, then the courts in this country are empowered by Parliament to step in and fill the gap. For my part I do not believe that the intention of Parliament in passing this Act was in any way to vest in the English courts any powers of review or even correction of orders made in a foreign forum by a competent court in which the whole matter has been examined in a way exactly equivalent to the examination which would have taken place if the application had been made in the first instance in the courts here. That is not the object of this legislation at all."
Dillon L.J. said at p. 374,
"I cannot think that it was intended that the English courts should be swift to assume jurisdiction wherever English legislation in respect of the making of financial provision for wives is in English eyes better than foreign legislation, or wherever better relief is available for wives here than abroad."
"Of course, the paradigm case creating the need for the legislation was the case where the decree of the foreign court was entitled to recognition in this jurisdiction but where that court did not offer any rights to financial provisions, either at all or, alternatively, on any basis comparable to the rights arising under the Matrimonial Causes Act 1973 in this jurisdiction. The opening sentences of the Law Commission Report, Financial Relief after Foreign Divorce (Law Commissioners. No. 117) so states. However, after Parliament had provided the remedies for the paradigm case, attempts were repeatedly made to extend the statutory provisions to obtain for the applicant some specific outcome or target which she had failed to achieve in the jurisdiction where the marriage had been dissolved. Hence, Holmes v. Holmes and the subsequent cases are in the main restrictive and negative in conclusion, defining and policing the boundary between relieving hardship in the paradigm case and disqualifying the forum shopper for the applicant seeking a second bite of the cherry."
The third question: what part do the considerations of comity and the rules of forum conveniens play?
" that section  reflects the fundamental rule of comity as between competent courts dealing with matters of this kind."
At p. 375, Dillon L.J. said:
"The law of New York as to financial relief for wives in matrimonial proceedings may not be the same as the law in this country. But, to adapt the wording of Lord Goff of Chieveley in de Dampierre v de Dampierre at p. 13B, there is no basis for saying that justice would not be done if she is compelled to pursue her remedies for financial provision in the courts of New York according to the law of the State of New York. The New York court is the natural forum for the resolution of disputes arising from the breakdown of this marriage."
"However these cases must not be decided on the basis of compassion for a seemingly disadvantaged mother.
Wisely or unwisely she has pursued her financial rights in [the court at Versailles] to a very full extent. The court at Versailles is a court of competent jurisdiction in one of our nearest neighbouring friendly states and the principles of comity require that I should recognise and respect its orders. It is not for me to detect chauvinistically the benefits, advantages or superiorities in our system for determining financial claims over the system which has evolved in that neighbouring jurisdiction. It offends common sense as well as principles of comity that any litigant should be free to start again from scratch in this jurisdiction, having taken financial claims to realistic conclusions within the French system."
"However, the major cases which have come before these courts since the implementation of the 1984 Act have been in relation to wives who have obtained orders in foreign courts which they have then felt to be inadequate and have come to the English courts for more generous orders. Those applications have been, if I may respectfully say so, very properly dismissed in these courts, particularly on the ground that there should be no two bites at one cherry and a litigant has no right to go forum shopping and, having obtained one order in one jurisdiction, to try and obtain an order in another."
"Again, as in every other application for leave under Part III, forum conveniens considerations come into play. de Dampierre v de Dampierre establishes the importance of fixing the primary jurisdiction before competitive litigation in more than one jurisdiction has unnecessarily depleted available assets. It is equally important to outlaw unnecessary competitive litigation after the primary jurisdiction, identified by common consent, has performed its essential function to divide assets and income."
"The weight to be given to what has been called a 'legitimate personal or juridical advantage' was considered by your Lordships' House in the Spiliada case  AC 460, 482-484. The conclusion there reached was that, having regard to the underlying principle, the court should not, as a general rule, be deterred from granting a stay of proceedings simply because the plaintiff in this country will be deprived of such an advantage, provided that the court is satisfied that substantial justice will be done in the appropriate forum overseas. French matrimonial law contains provisions for 'compensation', which, unlike our own, place emphasis upon the question whether the breakdown of the marriage was due to the exclusive fault of one of the parties, providing (subject to an important exception) that a party so at fault is deprived of the right to an award of compensation. Such an approach is no longer acceptable in this country, though it bears a close resemblance to the principles applicable here not so very long ago. But it is evidently still acceptable in a highly civilised country with which this country has very close ties of friendship, not least nowadays through our common membership of the European Community; and I find it impossible to conclude that, objectively speaking, justice would not be done if the wife was compelled to pursue her remedy for financial provision under such a regime in the courts of a country which provide, most plainly, the natural forum for the resolution of this matrimonial dispute."
" Now, as a general rule, I do not think that the court should be deterred from granting a stay of proceedings simply because the plaintiff will be deprived of such an advantage [of damages awarded on a higher scale], provided that the court is satisfied that substantial justice will be done in the available appropriate forum."
"There is no evidence that substantial justice cannot be obtained by the wife in the Courts of Nigeria."
The fourth question: when is it "appropriate" to order relief?
"Prima facie the order of the foreign court should prevail save in exceptional circumstances So far as it is possible, duplicity of proceedings should be avoided in this as in all other fields in the interests of the parties and their children as well as in the interests of justice and the comity of nations."
"There can be no doubt that these are orders made in foreign forum by a competent court in which the whole matter has been examined in a way broadly equivalent to the examination which would have taken place if the application had been made in the first instance in a court here," with emphasis now added by me.
Did Coleridge J. err?
"The exigencies of daily court room life are such that reasons for judgment will always be capable of having been better expressed. This is particularly true of an unreserved judgment These reasons should be read on the assumption that, unless he has demonstrated the contrary, the judge knew how he should perform his functions and which matters he should take into account. This is particularly true when the matters in question are so well known as those specified in section 25(2). An appellate court should resist the temptation to subvert the principle that they should not substitute their own discretion for that of the judge by a narrow textual analysis which enables them to claim that he misdirected himself."
So I begin with the easy acknowledgement of the high regard in which Coleridge J. is universally held and of his vast experience in this field. Paraphrasing Lord Hoffmann, one does not have to teach this old and ugly grandmother how to suck eggs.
"Both parties are Nigerian, although they took British citizenship in 1972. They were married for 32 years and spent most of their married life in Nigeria. They lived part of their lives , though less time , in the UK",
he did not refer to their connection with Nigeria when dealing with section 16. Mr. Dyer rightly points to the fact that the judge had this in mind as part of the history but I cannot be certain, even after re-reading Lord Hoffmann's warning, that the judge did have regard to those matters as a relevant factor under section 16. The whole purpose of sub-section (2) (a), (b) and (c) of section 16 is to try to identify which court has the closest and most appropriate connection to the parties. This as an essential balance to strike. The connection with the divorce court is, therefore, a factor which merits particular mention. It is a more weighty factor than the connection the parties have with England and Wales. I say that because although some tenable connection with England and Wales must be shown to prevent blatant forum shopping, the connection with Nigeria is important for its establishing that country as the natural and appropriate forum to deal with the divorce.
"It offends common sense as well as principles of comity that any litigant should be free to start again from scratch in this jurisdiction, having taken financial claims to realistic conclusions within the French system."
Lord Justice Longmore:
Lord Justice Jackson: