THE BLOG

When the 'International Divorce Race' Goes the Extra Mile

10/12/2013 14:38 GMT | Updated 09/02/2014 10:59 GMT

In recent years, travel and technology have seemed almost to shrink the world to the manageable proportions which would have bewildered explorers of previous centuries.

Now, we think nothing of hopping on a flight to the other side of the globe for work or pleasure, or conducting 'live' face-to-face conversations via video with individuals sat thousands of miles away.

With countries and the citizens living in them having become more connected, it shouldn't come as any great surprise to learn that the law has too.

Sadly, the global flavour of law becomes apparent when families founded on different nationalities break apart.

Quite often in these circumstances the reputation of courts in England and Wales as being 'wife-friendly' has proven attractive for women seeking to secure a favourable settlement on divorce, meaning that a reasonable proportion of cases with an international dimension are heard here.

Equally, husbands in failing marriages have been keen to file for divorce in jurisdictions where they believe they might get a better outcome.

Vicki McLynn, one of my colleagues in Pannone's Family department, has reported how those differing positions have fuelled a rise in what is known as 'forum shopping' with spouses racing each other to begin proceedings in countries they consider more likely to benefit them financially.

Such competition is particularly intense in cases featuring couples able to demonstrate ties to European countries operating a 'first past the post system', in which divorces are dealt with in those territories where papers are first issued.

Currently, about 10 per cent of our overall workload has an international element including at least one of the couple living abroad or the presence of foreign assets.

However, one interesting strand has become noticeable in the last couple of years which may undermine the confidence of husbands, in particular, who feel that having filed first necessarily means having won the 'forum shopping' race.

In March 2010, the Supreme Court in London ruled in favour of a woman who claimed that a financial settlement made following her divorce in Nigeria was inadequate, failing to account for English properties owned by herself and her husband.

Sikirat Agbaje had met and married her husband in England in the 1960s, even though much of their 38-years as man and wife was spent in Nigeria despite having both gained UK citizenship.

After their break-up in 1999, Mr Agbaje issued proceedings in Nigeria and she was awarded interest in a property in the country's capital, Lagos, along with a lump sum of about £21,000.

However, his ex-wife complained to the High Court in London that the African settlement would cause her "real hardship". She used part of English law - Part III of the Matrimonial and Family Proceedings Act 1984 - which allows courts here to grant financial relief in circumstances where marriages have been dissolved overseas.

As a result, Mrs Agbaje was awarded a further £275,000, an amount roughly 10 times the size of the Nigerian settlement.

The Supreme Court's judgement did not limit such cases to people living and divorcing within the Commonwealth. Whilst the outcome of cases is determined on their individual merits, anyone able to meet the essential criteria - which include exhausting all possible remedies in countries where the original divorce was concluded and having UK domicile while living overseas or maintaining a family home in this country - could successfully argue that they also deserve to have foreign divorce settlements considered by the English court.

That could apply to couples with sufficient ties to England and Wales who have moved abroad for love or labour or expats who wanted to claim their place in the sun before their marriages ran into difficulties.

Thanks to our increasingly international lives, that covers almost any jurisdiction you can think of too, including in Europe and the United States.

It is a prospect which should cause husbands, in particular, some discomfort.

It's impossible to say precisely how many cases similar to Mrs Agbaje's there have been in the three and a half years since the Supreme Court ruled in her favour. Statisticians at the Ministry of Justice say that they don't maintain data on how many 'Part III' cases there are.

Anecdotally, though, it is possible to say that there have been a number of enquiries from women looking to run cases along the same lines as those used by Mrs Agbaje. Colleagues at Pannone have handled at least some of those to have surfaced since 2010.

The situation prompted by Mrs Agbaje and those in similar circumstances does not amount to an 'open season' in which divorce settlements are revisited at will.

I would say, though, that it reinforces the need for both spouses to do their best to arrive at an agreeable settlement to begin with, no matter how disagreeable the breakdown of a marriage may be.

Husbands and wives who appreciate the potential for a 'Part III' claim could consider filing for divorce in England and Wales rather than spark a lengthy and costly succession of trans-national court disputes.

It is always harder to argue the need for further financial provision of the sort secured by Mrs Agbaje if both divorcing spouses have been given a fair portion of whatever joint assets they might have to divide.