Forum shopping - having the best of both worlds?

Posted On: 14 July 2010

Author: Janys M Scott QC

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Murray Stable's Janys Scott QC spoke at a joint seminar organised by Morton Fraser in Edinburgh and a London firm.  This is a copy of her paper exploring the application of the Matrimonial and Family Proceedings Act 1984 in England and in Scotland.

Janys M Scott QC

[1]  What is the point of forum shopping?  Parties set out to secure a decision in the court which best suits their case, applying the law that best suits their case.  But what if one could cherry pick, and have the best of two jurisdictions?  Recent case law in England admits of such a possibility, although the scope for a ‘two shop solution’ is much more limited in Scotland.  There are two cases in particular that illustrate the possibilities.  They are the decision of he Supreme Court on 10 March 2010 in Agbaje v Agbaje [2010] UKSC 13, [2010] 2 WLR 709 and that of the Court of Appeal in Moore v Moore [2007] EWCA Civ 361, [2007] FCR 353. 

[2]  Both cases relate to applications under the Matrimonial and Family Proceedings Act 1984, which allows a domestic claim to be made for financial provision, following an overseas divorce.  The Act arose from concerns over recognition of overseas divorces.  As international movement of persons increased, the family courts in the United Kingdom were faced with divorces properly granted overseas, which did not make financial provision for a spouse, usually the wife.  Public policy demanded recognition.  The Recognition of Divorces and Legal Separations Act 1971 was passed (subsequently repealed and replaced by Family Law Act 1986).  On the other hand it would be contrary to public policy to endorse a course of action designed to leave a dependent wife with no provision (see Chaudhary v Chaudhary [1985] Fam 19).  The solution was the 1984 Act.  The Act has been little used.  There is one reported case in Scotland (Tahir v Tahir 1993 SLT 194, Tahir v Tahir (No 2) 1995 SLT 451).   Enthusiasm in England was dampened by the case of Holmes v Holmes (1989) 2 FLR 364, where the court declined to use allow the Act to be used to interfere with the decision of a foreign court on a question of financial provision.  The situation may be changing.

[3]  The decision of the in Supreme Court Agbaje v Agbaje has drawn attention to the 1984 Act, and to the differences in its application in England and Scotland.  Mr and Mrs Agbaje were born in Nigeria.  They met and married in London in the 1960s.  They acquired British nationality, as well as retaining their Nigerian nationality. They had five children, all born in London. In the 1970s they returned to live in Nigeria, but four of the children went to school in England and the husband bought a house in Barnet.  In 1999 they separated and the wife moved back to England and took up residence in the house in Barnet.  The husband started divorce proceedings in Lagos.  The wife petitioned for divorce in England.  Both applied for a stay (sist) of the other party’s proceedings.  Neither was successful.  Divorce was granted in Lagos.  The Nigerian court lacked the power to transfer property, but ordered that the parties’ home in Tin Can Island, Lagos be settled on the wife for life and that she should have a capital sum of about £21,000 for her own support.  The wife applied to the English Court for financial relief, under Part III of the Matrimonial and Family Proceedings Act 1984.  She required leave to apply, which she secured, and after a hearing in the High Court, before Coleridge J, she was awarded 65% of the proceeds of the house in Barnet, expected to amount to about £275,000.  This represented 39% of the total value of the matrimonial property.  The husband appealed successfully.  The Court of Appeal took the view that there had been insufficient deference to the Nigerian court, which was the natural and appropriate forum for resolution of the wife’s claims.  Despite hardship to the wife, comity commanded respect for the Nigerian order.  The Supreme Court disagreed and restored the decision of Coleridge J. read the full paper please click on the link at the top of this page.