The Supreme Court handed down judgment in the case of Agbaje v Akinnoye-Agbaje [2010] UKSC 13 on the 10th March 2010. The case concerned the power of English courts to grant financial relief in line with Part III of Matrimonial and Family Proceedings Act 1984 c.42 (“the Act”) following either the dissolution or annulment of a marriage in a foreign country. The Act intended to alleviate hardship suffered as a consequence of financial provision decisions upon divorce in foreign jurisdictions.

The parties held dual British and Nigerian citizenship, and all children were born in England. The appellant in the present case had applied for financial relief under Part III of the Act, following the grant of a divorce in Nigeria on the petition of the respondent. The order granted in the High Court constituted the equivalent of a 39% award. Overturning the order, the Court of Appeal determined that the judge had not given sufficient consideration to the connections of the parties with Nigeria.

The issue before the Supreme Court concerned the correctness of the Court of Appeal decision to interfere with the order made in the High Court. Undertaking consideration of the proper approach to the Act and the operation of Part III the court referred to s. 16(2) of the Act. Addressing four questions of principle relating to the act, the Supreme Court considered the relevance of the factors in s. 16(2), the role of the forum non conveniens principle, whether hardship and injustice must be demonstrated and whether the court is limited to ordering only a minimum level of relief.

Allowing the appeal, the court determined that s. 16(2) was not relevant to the question of whether an order should be made. Considering the case of Holmes v Holmes [1989] Fam 47, the court found that no statutory forum non conveniens test was imposed, but that comity between competent courts was relevant to the exercise of discretion. Applying Jordan v Jordan [2000] 1 WLR 210, hardship and injustice were defined as relevant factors to be considered but not preconditions to be demonstrated by an applicant.

Acknowledging that the court is not limited to ordering only a necessary minimum, the Supreme Court nonetheless highlighted that the financial provision will be dependent upon all circumstances of a case.

Finding the Court of Appeal erred in principle through its application of traditional forum non conveniens principles to the present case, the Supreme Court allowed the appeal and restored the order made by the High Court.