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Archive for the ‘divorce’ Category

I was just reminded of the case of Agbaje v Agbaje, which has been further reported on in The Times this week. To cut a long story short, the couple had lived both in the UK and in Nigeria, and had dual citizenship. At the time of divorce, the couple had been in Nigeria, where the courts awarded Wife a pitiful £7,000 to Husband’s £616,000- this after a marriage of 40 years! Naturally, Wife wanted a better deal for herself and was eventually allowed to have the case re-heard in the UK, where she was awarded a fairer £275,000. However, Husband appealed successfully, and the Court of Appeal upheld the original decision of the Nigerian courts. Wife is now appealing to the Supreme Court.

Personally, I’m for the Wife on this one. After being awarded such a pathetic sum in Nigeria after such a long marriage, who can blame her for wanting a better future for herself? It’s not as if Mrs Agbaje had no connection to the UK- all of their children were born here, and both of them had dual citizenship- they lived here for over 10 years while their children were growing up. In re-establishing the original award, the Court of Appeal were clearly at pains to do away with the image London has as the ‘divorce capital of the world’. But what does that even mean? If it means our courts deal with every case on its own merits and apply the same factors to each, then quite frankly I am proud to live in this jurisdiction. The Press focus far too much on the big money cases- not every case is like White or Radmacher. If people are using our courts for their ancillary relief proceedings, then it is because our judges are fair and open-minded, NOT because they are going to get a meal ticket.

There is also a serious political point to be raised here. Mrs Agbaje is in financial ruin. In the coming years, as she gets older (she’s now in her late 60’s), she will become increasingly reliant on our welfare system, using our taxpayers’ money as a saftey-net while her ex-Husband enjoys a very comfortable life in Nigeria. Is this fair? I think not..

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The Times today reports of the latest raft of recommendations from Baroness Deech over the status of pre-nup’s in English law. She calls our own system “anachronistic”, and refers to the approach taken on the Continent as an “immediate and attractive model for reform in this country”. Whilst I do agree that enforceable pre-nuptial agreements would save both parties time and money on divorce, for the time being I cannot see a situation where all discretion is taken away from the judges in our family courts. Baroness Deech seems to ignore the huge chasm that lies between our legal system and those across the Channel. France, for example, operates by a Code which affords little or no discretion to judges. By contrast, in England, we have always had a system where the judges have almost unfettered discretion in dividing property on divorce. Even the Court of Appeal’s decision in Radmacher was based on the judges being able to adopt a flexible approach that catered to the facts of the case.

For the moment, I cannot see a situation where absolutely all discretion is removed from judges in ancillary relief proceedings. So where would this leave pre-nup’s? Perhaps they should be added into s.25 of the Matrimonial Causes Act as a separate factor to be considered. That way, where they exist, they will always be considered, but we will still hold on to judicial discretion.

In any case, the Conservatives have pledged to make pre-nup’s binding when/if they form the next government, so perhaps Baroness Deech’s wish will come true…

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